Judgment 1. THE suit I have now been called upon to decide is an 'ancient' one instituted on April 12, 1949. 2. AN action in ejectment, it is founded on forfeiture of a lease dated january 16, 1943, concerning a cinema house, then known as Shree Bharat laxmi Talkie and now as Prabhat cinema, at 135a Chittaranjan Avenue at the junction of Chittaranjan Avenue and Mahatma Gandhi Road. Ejectment apart, two other reliefs bulk large : mesne profits at Rs. 300 a day and damages to the tune of Rs. 1,10,000. Though dated January 16, 1943, the lease runs from January 1, 1942, and for a term of 5 years. The lessor is one Rameswarlal Ganeriwalla, the lessee being Birijratan Daga. The monthly rent reserved is Rs. 1,925 made up of Rs. 800 for the land with the messuages, tenements and shops plus rs. 1,125 for cinema theatres, machinery and furniture. 3. THE lease consists of two schedules. The first schedule refers to "all that piece or parcel of land measuring 1 Bigha more or less together with the buildings and structures standing thereon being the portion of premises No. 135a Chittaranjan Avenue", records this subject-matter being "delineated in the map or plan hereto annexed", and concludes describing how it is 'butted and bounded' by four sides-north, east, south and west. The second schedule lists fittings, furniture and machinery-91 items in all-divided into three parts on what seems to me no intelligible principle. Taking first the last part captioned 'tools', 57 items are there including 1 Christmas tree, 2 wooden almirahs, 9 wooden racks, 10 door screens etc. which can hardly be called tools without stretching to the breaking point. The second part consists of 9 items, said to be 'spare parts' all, going by the heading it bears. The first part, a nondescript one, contains 25 items ranging from 32 sofa seats, 251 cushion seats etc. to 1 generator (42 volts 4 kw.) and even to 1 screen again. 4. THE more important of the covenants now call attention. The second clause of the lease embodies the lessee's covenants, so many as sixteen, with one sub-clause for each. The first part, a nondescript one, contains 25 items ranging from 32 sofa seats, 251 cushion seats etc. to 1 generator (42 volts 4 kw.) and even to 1 screen again. 4. THE more important of the covenants now call attention. The second clause of the lease embodies the lessee's covenants, so many as sixteen, with one sub-clause for each. By sub clause (4) the lessee covenants-"to keep the said Cinema Theatre properly fitten up, decorated and in a state fit for cinema exhibitions and to keep the exterior and interior of the said cinema and all the fittings, machinery, furniture, articles, and things specified in the second schedule hereto in good and substantial repair and condition and in a state in every respect fit for cinematograph entertainments." I have taken the liberty of putting commas in the extract just quoted-commas which the lease does' not bother about-only with a view to helping me to understand the covenant better, not with a view to pleasing the grammarians. So i shall do whenever I reproduce excerpts from this document. To return to the covenants, by sub-clause (5) of clause 2, the lessee covenants "to preserve the fixture, fittings and machinery specified in the second schedule hereto in their present condition and to replace with articles of the same kind and quality all such parts thereof, "as shall have been damaged, worn out or destroyed." One common exception to both these liabilities of the lessee, whether under sub clause (4) or sub-clause (5), is "damage by fire, act of God and irresistible force." 5. THE third clause of the lease incorporates the lessor's covenants, no more than six, with a sub-clause for each. Skipping it for the present, I reach the last and fourth clause with its two sub-clauses, the first of which is a proviso- for re-entry for non-payment of rent, as also for non-performance of any covenant, and the second a covenant for renewal. The portion material here bears :- "4. PROVIDED ALWAYS and it is hereby expressly agreed as follows : - (1) If the monthly rent hereby reserved for a period of two months shall be in arrears and remain unpaid. . . . or if the Lessee shall fail or neglect to perform or observe any other covenant herein contained which on his part is to be performed or observed,. . . . . . . or if the Lessee shall fail or neglect to perform or observe any other covenant herein contained which on his part is to be performed or observed,. . . . it shall be lawful for the lessor at any time to re-enter upon the demised premises or any part thereof in the name of the whole and thereupon this demise shall absolutely determine, but without prejudice to the right of action of the lessor in respect of any breach of the lessor's covenants. . . . and the Lessee shall make good any losses or damages which the Lessor may be put to or sustain by reason of any such premature determination of this lease as aforesaid or otherwise. (2) If the Lessee shall be desirous of continuing the tenancy hereby created for a further term of two years at the expiration of the term hereby granted, he shall notify such intention in writing to the Lessor at least four months before the expiry of the tenancy hereby created, and the Lessor shall demise the said premises to the Lessee for a further term of two years from the first day of January, one thousand nine hundred and forty-seven, for the same rent and subject in all respects to the terms, conditions and covenants herein contained including a similar option clause for renewal of the Lease for further period of two years viz., from the 1st day of January, 1949". 6. SUCH then is the lease dated January 16, 1943, between Rameswarlal ganeriwalla, the lessor, and Brijratan daga, the lessee, who-even before the year is out-in consideration of the sum of Rs. 26,000 "of true and lawful money of British India", assigns "all his title to and interest" in this lease to western Film Corporation, a partnership concern, consisting of Nand kishore Bagaria and Mohamed Yocoob as partners The date of this assignment by an indenture is December 20, 1943. The monthly rent reserved is Rs. 2,100 an increase of Rs. 175, the monthly rent reserved by the lease having been Rs.1,925/ -. And in consideration of such an increase, the lessor rameswarlal Ganeriwalla "doth signify. . . . . his consent to the Assignment and transfer of the leasehold interest. . . . and doth. . . . The monthly rent reserved is Rs. 2,100 an increase of Rs. 175, the monthly rent reserved by the lease having been Rs.1,925/ -. And in consideration of such an increase, the lessor rameswarlal Ganeriwalla "doth signify. . . . . his consent to the Assignment and transfer of the leasehold interest. . . . and doth. . . . also signify his consent to the Assignor (Brijratan Daga) parting with the possession of the said leasehold premises and properties to the said Assignees" (Western Film corporation. Less than three months after the assignment of the leasehold interest, Yacoob, a partner of the assignee firm, Western Film Corporation, dies leaving behind him surviving heirs and legal representatives, sixteen strong, named in the sixth paragraph of the [plaint. To be exact, the date of his death is March 8, 1944. 7. ONLY fifteen days later, the lessor Rameswarlal Ganeriwalla determines the lease by a notice in writing. More, he proposes to re-enter and calls upon Nand Kishore Bagaria and the heirs of Yacoob to make over possession of the demised premises. The date of a notice as that is March 23, 1944. Apparently, the notice comes to little, not heeded to by those for whom it is meant. Result: an action is raised by the lessor ganeriwalla, against Nand Kishore Bagaria and all, for possession of the premises demised and for other reliefs too. The date of the institution of this action being suit No. 456 of 1944-is April 1, 1944. Nand Kishore Bagaria contests the suit. So do others including eight minors represented by their guardian ad litem Mohamed Ibrahim. In the end, however, the suit culminates in a compromise the terms of which are sanctioned by the court, for the benefit of the minors as they are. By virtue of the aforesaid decree rested on the compromise, the rent payable on behalf of the Western Film Corporation is enhanced to Rs. 2,600 a month from Rs. 2,100 a month. Enhancement of rent apart, the defendants who appear in the suit exercise their first option for a further term of two years, as provided for in sub-clause (2) of clause 4 of the lease, with the result that the life of the lease is extended from January 1, 1947 (when the five-year term ends) to the last moment of December 31, 1948. The date when the suit is composed so is June 6, 1945, so that the intention to exercise the option just noticed, and in writing too to the lessor, is notified much ahead of four months before the expiry of the five-year term on the midnight of December 31, 1946, in keeping with the requirement of sub-clause (2) of clause 4 of the lease. 8. MEANWHILE an important event had happened in the lessor ganeriwalla's family. A little more than three years before the consent decree, to be precise, on March 26, 1942, there was a partition between the lessor ganeriwalla and his sons whereby Lachmi narayan Ganeriwalla became the owner of the demised premises. That mattered little. Because the defendants who were parties to the compromise decree continued to pay rent in terms thereof to Lachmi Narayan, the new owner after the family partition. The facts which go before on the lines of averments in the first eleven paragraphs of the plaint trace the origin of the leasehold and the developments it runs through. It is now time to notice the allegations in which lies the seed of this litigation. Nand kishore Bagaria, a partner of the assignee firm Western Film Corporation, and the heirs and legal representatives of Yacoob, the other partner of the said firm, fail and neglect to keep the demised cinema house properly fitted up, decorated and otherwise attended to in terms of sub-clause (4) of clause 2 of the lease. They fail and neglect too to preserve the fixtures, fittings etc. and to replace with articles of the same kind and quality such of them as are worn out and damaged, in contravention of sub-clause (5) ibid. Lachmi narayan, thereupon, through his solicitors, Messrs. Charu Chandra Bosu, kails upon them, Nand Kishore Bagaria and all, to rectify the defects and complete the necessary repairs-a list of which, running into 26 items including those which need replacement, is set out in the said solicitors' letter the date whereof is October 29, 1948. What is more, it is emphasised that the repairs are to "be completed before the possession of" the demised cinema house is made over to Lachmi Narayan according to the terms of the compromise decree. What is more, it is emphasised that the repairs are to "be completed before the possession of" the demised cinema house is made over to Lachmi Narayan according to the terms of the compromise decree. With the first option exercised and agreed upon, that date-the date of making over possession of the cinema house to Lachmi Narayan-is december 31, 1948, or to use accurate language, the midnight of that day. October 29, 1948, to December 31 following is 63 days. 9. NAND Kishore Bagaria and others, who are written so, do not remedy the defects. Nor do they make the necessary repairs and replacements, as they are asked to. So, one more solicitors' letter on behalf of Lachmi narayan forfeiting and 'duly' determining the tenancy. The date of this letter is December 30, 1943. 10. HENCE this suit by Lachmi narayan Ganeriwalla against Nand kishore Bagaria, the first defendant, and the heirs and legal representatives of yacoob, defendants 2-16, claiming possession of the demised cinema house with all machinery, fittings and furniture, and a lot more : (i) Rs. 1,10,000 as damages for waste, negligence and default committed by them and (ii)mesne profits at the rate of Rs. 300 ;a day from December 30, 1948, till delivery of possession of the demised premises. During the carriage of the suit, lachmi Narayan, the original plaintiff, dies. The date of his death is August 1, 1953. By an order of the court, his wife, Sm. Godavari Debi, and his three sons have been made parties. And they have been proceeding with the suit 11. OF so many defendants, the first one, Bagaria alone, contests the suit. The pleas he answers the action with are many. One, the covenants of the lease were not broken ever. If broken, all breaches have been waived two, the notice conveyed by the solicitors' letter dated October 29, 1948, not in compliance with the provisions of section 114a of the Transfer of property Act, 4 of 1882, as it has been, bars the suit in limine. Three, there has been no forfeiture of the lease on the foot of the letter dated December 30, 1948, on behalf of the original plaintiff, lachmi Narayan, who, it is said, lacks competence to forfeit the tenancy. Four, service of this letter, as also the earlier one dated October 29, 1948, is denied. Three, there has been no forfeiture of the lease on the foot of the letter dated December 30, 1948, on behalf of the original plaintiff, lachmi Narayan, who, it is said, lacks competence to forfeit the tenancy. Four, service of this letter, as also the earlier one dated October 29, 1948, is denied. Five, the charges of waste, negligence and default are denied. Is denied too the liability for damages. Six, the maintainability of the suit is questioned. Seven, the defendants, it is said, exercised their second option for renewal of the lease for a, further term of two years from January 1, 1949, with the legal consequence so obvious. 12. ON behalf of two minor defendants, Mahammed Kashem (No. 6) and Amir Hossain alias Mahamed Jam (No. 14), there is what is called a 'voluntary statement' (as distinguished from a written statement) the pith of which is that the natural guardian of these two minors could not be contacted in spite of all efforts. The guardian-adlitem, therefore, "leaves everything to this Hon'ble Court to adjudicate as it may deem meet and according to the just rights" of the minors "in order that their interest may be protected. " The parties go to trial on the following issues : (1) Did the defendants commit any breach of the covenant as alleged in paragraph 12 of the plaint and also in the letter dated October 29, 1948, on behalf of the plaintiff ? (2) Is the suit barred in limine under section 114a of the Transfer of property Act 4 of 1882 ? (3) Was the original plaintiff Lachmi Narayan Ganeriwalla entitled to determine the lease in controversy here ? (4) Has the aforesaid lease been determined at law by the letter dated December 30, 1948, on behalf of the plaintiffs? (5)Have the notices dated October 29, 1948, and December 30, 1948, been duly served upon all the defendants ? (6) Are the defendants liable for damages to the extent of Rs. 1,10,000/- as claimed or any other sum (7) Is the instant suit at the instance of the original plaintiff Lachmi Narayan ganeriwalla or his heirs and legal representatives, namely, the present plaintiffs, maintainable ? (8) Did the defendants exercise their option for renewal of the lease in controversy here for a further term of two years with effect from January 1, 1949 ? (8) Did the defendants exercise their option for renewal of the lease in controversy here for a further term of two years with effect from January 1, 1949 ? If so, what is the effect thereof at law ? (9) What sum, if any, are the plaintiffs entitled to by way of mense profits ? (10) What reliefs, if any, are the plaintiffs entitled to ? additional issue. (1. Have the breaches of the covenant and the forfeiture of the lease, if any, been waived as set out in paragraph 10 of the first defendant's written statement ? 13. THE present plaintiffs who are the successors in interest of the original lessor, Rameswarlal Ganeriwalla, may conveniently be referred to as 'the lessor'. Similarly, the sole contesting defendant, Nand Kishore Bagaria, one of the assignees from the original lessee daga, may conveniently be referred to as "the lessee." But both the expressions-"the lessor" and "the lessee" may be taken to mean that, save when there is something repugnant in the subject or context. 14. TO the first issue first. Its burden is breach of covenant. Mr. Gouri mitter, the learned counsel for the lessee, contends that the averments in the plaint proper do not enumerate what covenant the lessee has broken. True it is that the twelfth paragraph thereof is merely a rehash of what is in sub-clauses (4) and (5) of clause 2 of the lease as the lessee's liability. To aver so is not to say what covenant the lessee is in breach of. But the thirteenth paragraph appears to be a complete answer to Mr. Gouri Mitter's contention. Because it refers to the notice dated October 29, 1948-a copy whereof is annexure C to the plaint, the original having been marked exhibit H at the trial on admission, and another copy appearing at pages 101-103 of the admitted brief of documents, exhibit A. This notice gives an exhaustive list of what the lessee has not done and is called upon to do in terms of the lease. But the effect of this, Mr. But the effect of this, Mr. Gouri mitter submits, is somewhat lost by the thirteenth paragraph averring that by the letter or notice dated October 29, 1948, the lessor called upon the lessee "to rectify the said defects"-an expression which, in the context, necessarily means, the contention runs, the defects mentioned in the preceding paragraph-the twelfth one-a paragraph that does not, however, list any defect. It only reproduces certain material words from sub-clauses (4)and (5) of clause 2 of the lease, omitting some, and editing the whole a little. But nothing can turn on it. The thirteenth paragraph does not stop averring "the said defects". It goes a little more, the words material here leading : ". . . . called upon the defendants to rectify the said defects and complete the necessary repairs as detailed in their said letter. . . . " so, the defects may be taken, without straining, as the defects set out in the letter of October 29, 1948. And in any event, even to a stickler there can be no mistaking the substance the plaint pleads. The substance is that the lessee has or has not done this, that, or the other, and has thereby contravened the covenants in sub-clauses (4) and (5) of clause 2 of the lease. The courts, as is well known, go by the substance of pleadings. So if I read, as I must, paragraphs 12 and 13 of the plaint along with "the notice dated October 29, 1948, the conclusion cannot be resisted that the specific charges the lessee is called upon to answer are there. So there is no vagueness anywhere. What is there instead is clarity itself. Whether each charge is vague or clear is a different matter. Not that Mr. Gouri Mitteer does not accept this position. He does. All he submits is that the lessor must be confined to what he complains of in annexure C to the plaint. He has comfined himself so. Indeed, Mr. Ghosh, the learned counsel for the lessor, addresses me on the foot of this very charge-sheet beyond which, for all I see, he does not generally travel. Now to the specific charges numbering 26. 15. 1. CHARGE as set out in serials 1 and 20. The two particulars are such that one goes with the other. Serial No. 1. Ghosh, the learned counsel for the lessor, addresses me on the foot of this very charge-sheet beyond which, for all I see, he does not generally travel. Now to the specific charges numbering 26. 15. 1. CHARGE as set out in serials 1 and 20. The two particulars are such that one goes with the other. Serial No. 1. bears : "the Motor and Generator are not giving uniform flow of current as this being 120 Volts reduced to 75 Volts 5 KW is heavier than mine which was 42 Volts 4 KW". I have taken this from the original notice dated October 29, 1948 : exhibit h. The text reproduced so differs slightly from that I find in annexure C to the plaint or at page 101 in the admitted brief of documents : exhibit A. The words-"this being 120 volts reduced to 75 Volts 5 KW"-are not in either, typographical errors apart. Be that as it may, serial No. 20 runs : "one h. I. Generator 42 Volt 4 KW, have been removed and the Generator mentioned in item No. 1 has been replaced in place "thereof which is of inferior quality. " so, the ingredients of the charge covered by these two particulars are- (i) the motor and generator now in use (120 volts reduced to 75 volts 5 kw)are not giving uniform flow of current, heavier as they are than the lessor's (42 volts 4 kw); (ii) the lessor's generator (42 volts 4 kw) has been removed; and (iii) worse, it has been replaced by the lessee's (120 volts reduced to 75 volts 5 kw)-one of inferior quality. 16. NOW, one generator (42 volts 4 kw) is the 20th item in what I have called in paragraph 4 ante the nondescript first part of the second schedule to the lease reproduced as exhibit A to the plaint-I would call it annexure A and also at pages 1-25 of the admitted brief of documents, exhibit A. One motor of 440 volts etc. (g). E. C. make) is the 10th item in the 3rd part (captioned Tools) of the second schedule too. Thus, the generator and the motor of the lessor being in the second schedule to the lease, the words in sub-clauses (4) and (5) of clause 2 therein receive effect. (g). E. C. make) is the 10th item in the 3rd part (captioned Tools) of the second schedule too. Thus, the generator and the motor of the lessor being in the second schedule to the lease, the words in sub-clauses (4) and (5) of clause 2 therein receive effect. By virtue thereof the lessee "for himself and his assigns" covenants with the lessor, (a) to keep this generator "in good and substantial repair and condition and in a state in every respect fit for cinematograph entertainments" and (b) to preserve it in its present condition (i. e. the condition prevailing on January 16, 1943, the date of the lease) and to replace with articles of the same kind and quality all such parts of this generator as shall have been damaged, worn out or destroyed. Do I see breach of these covenants ? But I must decide the question of onus first. The onus to prove non-performance of the covenants is on the lessor. And I hold him to a strict proof of this charge, no less of so many other charges covered by the remaining particulars. I keep in the forefront of my consideration that the litigation I am seized of is one concerning a forfeiture which the law 'abhors' and the courts strongly lean against. Not that there can be no forfeiture. To utter such an extreme proposition is to negate section 111 (g) of the Transfer of Property Act 4 of 1882. All I seek to emphasise is that a covenant the breach of which lands the lessee in a forfeiture of his lease must be strictly construed against the lessor to whom, however, nothing should be done smacking of unfairness. And the starting point in such an inquiry is the question of onus which is necessarily on the lessor out to prove that a forfeiture has occurred. He is the person who desires the court to give judgment as to the forfeiture having occurred-forfeiture which is dependent on the existence of facts constituting this charge and so many other charges too. It is for him, therefore, to prove that these facts exist. Since he is bound to prove so, the burden of proof lies on him (section 101 of the Evidence Act 1 of 1872), Again, the suit would fail if no evidence at all were given on either side. It is for him, therefore, to prove that these facts exist. Since he is bound to prove so, the burden of proof lies on him (section 101 of the Evidence Act 1 of 1872), Again, the suit would fail if no evidence at all were given on either side. So that way too the burden of proof lies on the lessor (section 102 ibid. He cannot flee this burden on the ground that the facts giving rise to this charge and others too are all especially within the knowledge of the lessee. Indeed, the contention of Mr. Ghosh on the question of onus is that. The parties to the lease had foreseen such a contingency. They had forestalled it too by making the lessee covenant,-"to permit the Lessor and his agents at all reasonable times during the said terms (of the lease), but so as not to interfere with any performance, exhibition or rehearsal, to enter upon the demised premises, or any part thereof, to view the condition thereof, to make inventory of the furniture, fittings, machinery, articles and things in and upon the demised premises. . . :",as is clearly provided in sub-clause (12) of clause 2 of the lease. This is a valuable right the lessor is all along aware of and the lessee does not run away from ever (q. 54 to the lessee on cross-examination. So, special, knowledge, lack of which the lessor now laments, was his for the mere asking and as a matter of right. T. K. Ghosh did inspect on January 27 and 28, 1949, and d. N. Sarkar on January 28, on behalf of the lessor in exercise of this very right. If the two engineers could inspect after the notice of October 29, 1948 they or others could do so before such notice too. I have therefore come to the conclusion that the burden of proof lies on the lessor to prove the charge I am on and other charges the notice dated October 29, 1948, sets out. 17. LET me now turn to the evidence with a view to answering the question I have posed in the beginning of the preceding paragraph, that is to say, with a view to satisfying myself if the lessor has succeeded in bringing home this charge against the lessee. 17. LET me now turn to the evidence with a view to answering the question I have posed in the beginning of the preceding paragraph, that is to say, with a view to satisfying myself if the lessor has succeeded in bringing home this charge against the lessee. Samrath Chowbey who is somewhat of a factotum instructs the solicitors on behalf of the lessor for everything pertaining to this suit. The lessor himself gives instructions, but occasionally, "sometimes", as Chowbey says. Shown the notice dated October 29, 1948, he says that it was he who had given instructions to the solicitors. But the lessor was with him then. Not that the lessor had given instructions. Such a one had an inspection of the demised cinema house prior to October 29, 1948, accompanied by one Nirode Mohan who was an operator during the period the lessor used to run the cinema and who continued to work as such under the lessee. Inspection over, he instructed the solicitors to 'write as they did in the notice dated October 29, 1948. The breaches complained of under "the list of damages" therein are all correct, chowbey adds (qq. 33, 34, 38, 35-37 and 40-41 in evidence in chief. But comfining myself to the charge under discussion, it becomes apparent that chowbey knows next to nothing, as his cross-examination reveals, about the motor, the generator, the flow of cuirrent and the like-on which the charge rests, a charge he pronounces with reckless glibness to be correct. First toe will say that could he see a generator, he would be able to tell the court what a generator is. Then he says that he knows the machine, but does not know what a generator is and how it is operated upon, as he has not read science. About a motor, all he knows is that it is required for the generator and is necessary for carrying on the machine. But what is the flow of a motor of 120 volts and 5 kw ? He does not know so much (qq. 52-55 on cross-examination then, he is good enough to confess his ignorance of these matters, even though in his evidence in chief he has not the slightest uneasiness in deposing to this charge rested on these very matters being correct :- 56. He does not know so much (qq. 52-55 on cross-examination then, he is good enough to confess his ignorance of these matters, even though in his evidence in chief he has not the slightest uneasiness in deposing to this charge rested on these very matters being correct :- 56. I take it you have no knowledge of motor or generator or about its flow of current ?-That is so. I have no personal knowledge. His knowledge, he confesses, is derived from Nirode who is employed under the lessee too at the time of inspection. Seen alive in 1957-58, Nirode must be presumed to be alive too in 1964 when the suit proceeds to trial. But Chowbey does not find him now. So, chowbey's evidence appears to be hearsay not worth looking at. Such an important fact-Nirode, the lessee's operator, supplying all the defects stated in "the list of damages"-is conspicuous by its absence in the notice dated October 29, 1948 (qq. 51, 62, 65, 67-77. On this consideration alone, the first ingredient of the present charge that the motor and the generator are not giving uniform flow of current is bound to fail. 18. BUT this is not the only consideration. Indeed, there are so many. Neither serial No. 1 nor serial No. 20 in "the list of damages" given in the notice of October 29 makes a complaint about the lessor's motor and generator. The complaint is about the lessee's motor and generator, as Mr. Gouri Mitter pertinently points out. Worse, it is a complaint which remains unsubstantiated by evidence. So, a breach of the covenants in sub-clauses (4) and (5)of clause 2 there cannot be. A breach there would have been if the motor and the generator of the lessor were not kept in good and substantial repair and in a state fit for cinematograph entertainments or if parts of the aforesaid machinery were damaged, worn out or destroyed, without the lessee having replaced those parts by articles of the same kind and quality. But that is not the lessor's case even, going by the charge. That is, no doubt, Mr. Ghosh's suggestion to some extent. Nobody goes and spends money to buy a generator, as he puts it in question no. 503 to the lessee, if the other generator were in a workable condition. But that is not the lessor's case even, going by the charge. That is, no doubt, Mr. Ghosh's suggestion to some extent. Nobody goes and spends money to buy a generator, as he puts it in question no. 503 to the lessee, if the other generator were in a workable condition. The lessee answers : "but for the better show of the film and for our own interest in earning, we have even fixed four machines; and in many cinema houses there are double machines. " To my thinking, an answer as that makes short work of the suggestion, apart from the fact that I shall find a forfeiture, if I can, on what the lessor pleads and proves-not on what his counsel suggosts. A machine is a machine. With all the care you bestow upon it to keep it spick and span, you cannot tell when it walks awry. Hence a prudent lessee maintaining a duplicate generator and running it too for a better show and for his own interest has nothing unsavoury in it. And surely that simpliciter does not give rise to the inference, as the suggestion is, that the other one has gone wrong. It is said, however, that when replying to the lessor's notice of october 29, the lessee does not say that both the generators are being worked. He does not. He may have forgotten to tell his attorney so (qq. 499 and 500 to the lessee. But he does not say either that the other generator does not work any more. He says instead : "the old motor and generator of your clients (the lessor) are lying with my clients (the lessee) in running order after usual wear and tear. My clients are using their own set for better and efficient show". So, the lessor's motor and generator are in running order. That is to say, they run. Not that they have become two lumbers. It would have been better if the lessee had said in his answer that both the sets are being used; now the one, next the other-as is the sworn testimony, before me. Let me weigh such non-traverse against the lessee, though I do not feel like doing so and see an inherent truth in the lessee's evidence. It would have been better if the lessee had said in his answer that both the sets are being used; now the one, next the other-as is the sworn testimony, before me. Let me weigh such non-traverse against the lessee, though I do not feel like doing so and see an inherent truth in the lessee's evidence. Even then, it is not proved that the lessor's set has become useless and that too due to non-performance of the covenant by the lesse. Such a crucial fact must be proved by the best evidence. It cannot be assumed, and so easily too, on the line of the suggestion Mr. Ghosh makes. Again, the evidence of the lessee that the lower-powered generator is pressed into service when the audience is this and the high-powered one when the house is full of spectators (q. 89) is pooh-poohed. Does it deserve to be treated so 1 I am no electrical engineer. The common-sense view, which Mr. Ghosh, no electrical engineer either, suggests to the lessee, is that "the same amount of light is needed for projecting the same picture-whether the house is filled up with 2 people or 2,000". The lessee accepts the suggestion (p. 492. If that is so, the rest of his evidence on this point should be beneath notice. At the same time, I see in such evidence no conscious falsity which is disproved by the lessee's ready acceptance of Mr. Ghosh's suggestion. I see in it an attempt on the part of the lessee, much too conscious of being a lessee of a cinema house, to rush in where others, far more knowledgeable than he, fear to tread. But what the lessee says has an element of truth in it. I hope, I shall not be accused of emulating him if I venture to examine the matter on my own, and by the common-sense test too. The generator goes into action. So does the projecting machine along with it. Result : the picture impinges upon the screen. More, it is reflected back to the audience. How is the audience seated ? that is the point the lessee misses. If they are seated in the front rows, surely less light is required. If they, numbering even 2 (the figure Mr. Ghosh suggests), are seated in the back row at the greatest distance from the screen, greater light will be necessary. How is the audience seated ? that is the point the lessee misses. If they are seated in the front rows, surely less light is required. If they, numbering even 2 (the figure Mr. Ghosh suggests), are seated in the back row at the greatest distance from the screen, greater light will be necessary. Because the light reflected on the screen has to travel back to the audience. And it is elementary science that the intensity of the light varies inversely as the square of the distance. So, the lessee is in a manner right. If few people occupy the front seats, you need less light. When the number of spectators is large occupying all parts of the house, you need much greater light. With this modification, what the lessee deposes to may stand. Say, this evidence about a higher voltage giving a greater light and better sound-the lessee himself abandons such, a theory later and confines himself to a smaller generator needing a smaller carbon for the ARC lamp-is false. But law is not: false in one thing, false in everything. A maxim as that is not accepted in different jurisdictions. And there is a very slender foundation, if at all, for conferring on this maxim the status of anything higher than a rule of caution, as Kapoor j. observed in (1) Nisar ali v. State of Uttar Pradesh, 1957 SCA 312. I cannot therefore bring myself to hold, only because of this, that the motor and the generator of the lessor have been rendered unfit by the lessee in breach of the covenants. Indeed, how can I when I have before me the evidence of that ignoramus Chowbey, on one hand, and that of the lessee who lives on the cinema, on the other ? I accept the lessee's testimony and reject chowbey's. The lessee is no doubt a party to this suit. Still he is as much a competent witness as any other (section 120 of the Evidence Act 1 of 1872. Nothing that I see shakes either his evidence or his competency as a witness on the point I am on now : the point of the lessor's motor and generator being in a running condition. Then, let not common sense be made a casualty of in this litigation or in any other. Here is the lessee saddled with a monthly rent of Rs. Then, let not common sense be made a casualty of in this litigation or in any other. Here is the lessee saddled with a monthly rent of Rs. 2,600-a big enough sum by any standard. To run a cinema is to keep a large staff all of whom have to be paid. What payment will come to can easily be guessed. It will be a pretty heavy sum. A number of professional organizations in the line-such as, Holland and Co., Empire Talkies Distributor and General Radio Appliances-are called in for servicing, overhauling and otherwise attending to, whenever necessary, the plants and equipments in the cinema house, the motor and the generator forming part thereof. They charge for the services they render (qq. 31-38 to the lessee. What the charges are will be found entered in the accounting books : cash books of 1946-47, 1947-48 and 1948-49, exhibits 3/a, 4/a and 5/a respectively; as also the ledger books of the same years, exhibits 6/a to 8. a. They go in evidence under section 67 read with section 34 of the Evidence Act, 1 of 1872, the handwritings of the writers of the entries, Balai Chakravorty and M. Banerjee, (not available now), being proved. Mr. Ghosh raises no objection on the score of admissibility, but reserves to himself the right to attack these entries on merits, such as : that they are false and have been recently written (qq. 275-307 to the lessee and the note recorded by me at the end of question No. 307. He does attack the entries for three reasons-the first of which is that, on the lessee's own showing, the accounting books were all removed by the hooligans when they plundered the cinema house during the great Calcutta killings of August 1946 a notorious fact which I take judicial notice of. And the area is such within a stone's throw, so to say, from kalabagan Bustee that this notorious fact becomes still more notorious. So, Mr. Ghose concludes, the accounting books the lessee relies upon must have been "cooked" later. And the area is such within a stone's throw, so to say, from kalabagan Bustee that this notorious fact becomes still more notorious. So, Mr. Ghose concludes, the accounting books the lessee relies upon must have been "cooked" later. It is true that almost immediately after the riots the lessee writes to the Commissioner of Police, Calcutta, complaining about the murder of one of his darwans and removal of cash and valuable documents including books of accounts : vide his letter dated August 23, 1946, at page 1 of the admitted brief of documents; exhibit B. But in August 1946, the books of 1946-47 (the accounting year commencing on the Dewali day of 1946, that is, in or about October : qq. 278 and 280 to the lessee), 1947-48 and 1948-49 were not "born" and could not therefore have been removed. That apart, as the lessee explains, the accounting books were all kept in the office at 31 bentinck Street-not in the cinema house where were kept kutcha. books, not kutcha books even, but vouchers. This sort of vacillating be condemned. But i am yet to know of a witness even of the highest calibre whose evidence is hundred per cent correct. Some confusion, some inaccuracy, is bound to creep in. Here the main outline of the lessee's evidence remains. The letter to the Police Commissioner is written in a hurry. Why hurry alone ? The tremendous excitement in the background of loot and murder is there only to be seen. So the mention of books of account in the letter is nothing like so important as has been imagined. In that hurry and excitement an inaccuracy here or there is only too expected. Then, what the lessee says in his letter to the Police Commissioner about the loss of books of account is at best an admission. It cannot be put any the higher. So, it is not conclusive as to the truth of the removal of the accounting books. It can be shown to be erroneous so long as the person to whom it has been made has not acted upon it to his detriment, as section 31 of the Evidence Act 1 of 1872 provides- (2) Nagubai Ammal and Ors. v. B. Shama Rao and Ors., AIR 1956 SC 5913. Here it has been proved to be erroneous. It can be shown to be erroneous so long as the person to whom it has been made has not acted upon it to his detriment, as section 31 of the Evidence Act 1 of 1872 provides- (2) Nagubai Ammal and Ors. v. B. Shama Rao and Ors., AIR 1956 SC 5913. Here it has been proved to be erroneous. And, of course, the Police" commissioner does not act upon it to his detriment. The lessor ? He has little to do with it. So Mr. Ghosh's first reason fails. No less does his second reason which is that the particular entries have not been proved, denying him an opportunity for cross-examination. It beats me how Mr. Ghosh can argue so. The entries have all been very much proved in accordance with law, as I have observed earlier in this paragraph. Proved so, to save tune, they have been marked on consent in a lump, not entry by entry. I repeat, Mr. Ghosh raises no objection on the score of admissibility. All he reserves to himself is his right to attack the entries (all disclosed in good time) on merits. That right including the right to cross-examine has always been there. I refer again to the note I recorded at the end of question No. 307 to the lessee. So I see little merit in such an approach. Equally ineffective is Mr. Ghosh's other reason-the third one that the entries in the accounting books are secondary evidence under section 34 of the Evidence Act 1 of 1872. Presumably, what Mr. Ghosh seeks to convey-I venture to think so, with respect-is that the entries are merely corroborative evidence as distinguished from substantive evidence. That, indeed, they are. The entries shall not alone be sufficient to charge any person with liability, to quote section 34; nor shall they by themselves be sufficient to warrant a firm finding (as here) that the amounts they disclose have been expanded in the manner indicated. For that I need independent, that is, substantive evidence. I get what I need. For, the lessee's clear evidence is that he has personal knowledge as to the correctness of these entries written under his instructions every day in the evening in the usual course of business. So, Mr. Ghosh's attacks fail. Another matter needs looking into. None are examined from any one of these organizations-Holland Co. I get what I need. For, the lessee's clear evidence is that he has personal knowledge as to the correctness of these entries written under his instructions every day in the evening in the usual course of business. So, Mr. Ghosh's attacks fail. Another matter needs looking into. None are examined from any one of these organizations-Holland Co. etc.-in support of the lessee's evidence of periodic servicing and the like. The explanation the lessee gives is that empire Talkies Distributor closed down some six months before or after this suit. The service department of General Radio Appliances closed down to in 1953. The persons who attended to the plants and machinery of the cinema house could not be traced. Nothing, it appears, is said about Holland and co. I do not rate this explanation very high. I do not rate it as frivolous either. If the Court hears suits twelve years and more after they are raised, the litigants can hardly be blamed far the predicament they find themselves in. A point is made too of the lessee having disclosed a solitary letter dated October 22, 1948 (page 9 of another brief of documents, exhibit 1) is taken of a service contract (qq. 426-429 in cross-examination by Mr. Ghosh. Factually, this does not appear to be correct. The lessee says that he disclosed, all the documents (q. 430. Again, there may be servicing without a regular contract in writing or through correspondence. Upon all I see, I believe the lessee. Say, I do not on this" point and reject the accounting books. Still who has ever heard of a cinema running for months and years without its machinery and equipment being attended to from time to time ? So, that can be taken for granted, accounting books or no accounting books. And surely that means expenses. None will do the servicing and tend the defects free. There must be other expenses too. The films to be shown have to be paid for. Having all this in mind, I ask myself : can the lessee afford lack of uniform flow of current with all that it means for a cinema show ? The audience will get disgruntled. Tempers will be frayed. The good will of the cinema house will slump. And the lessee will be the hardest hit, the lessor getting the monthly rent of Rs. 2,600 all right. The audience will get disgruntled. Tempers will be frayed. The good will of the cinema house will slump. And the lessee will be the hardest hit, the lessor getting the monthly rent of Rs. 2,600 all right. Even one like Chowbey is good enough to admit that the lessee will suffer. Will the lessee be committing suicide like this ? To say so is to apply the test of probability which a prudent man is fond of and which Mr. Gouri Mitter wants me to call in aid. To say so is not to say that a lessee does not misbehave ever. He does, as we all know, and forfeits his lease. But there must be dependable evidence to that end-evidence which displaces what the test of probability points to. Here i do not see any. I have stated why. But I have not stated yet all I have to. To Chowbey's evidence again. He sees the cinema house closed on some 8 or 10 occasions. He sees too sometimes money refunded to the spectators which means that shows in progress are abandoned. Again, he hears from the courtyard of the cinema house the spectators coming out, raising a furore over lack of a proper sound and indulging in abuses, which I have taken in as original evidence, because they form part of res gestae. But Chowbey is one who, in exercise of his supervisory functions on behalf of the lessor, visits the cinema house very often, not with a view to seeing a film-he has not seen one ever-but with a view to satisfying himself that the house is in a good condition. The years when he visits so are 1946-48. And until the October notice, exhibit H, he is satisfied with what he sees. Any defect coming to his notice, he asks the lessee or his men to repair or remedy it. So the noise Chowbey makes before me about the noise made by the spectators on 8 or 10 occasions appears to be so much empty noise too. And until the October notice, exhibit H, he is satisfied with what he sees. Any defect coming to his notice, he asks the lessee or his men to repair or remedy it. So the noise Chowbey makes before me about the noise made by the spectators on 8 or 10 occasions appears to be so much empty noise too. Otherwise how can he be satisfied with all he sees until the October notice his subsequent evidence that long prior to October 29, 1948, and even in 1948 and 1947 the lessee did not attend to his direction to mind this machinery or that is not apt to carry conviction, coming as it does from one who knows nothing about machinery. It is not even his evidence that Nirode accompanies him every time. Chowbeyji does not, it seems, realise where a lie can take him to. He does not see the evidence whole either. That nothing like this (a hue and cry, refund of ticket money etc.) happens is manifest from the fact that the correspondence in 1946 (one letter dated April 1 : P. D. No. 4) and 1948 (two relevant letters, one dated April 30 : 1st D. D. No. 4) and the other-the October notice itself)1947 is a year of no letter-does not hint it even. I disbelieve Chowbey. I prefer instead the lessee's evidence that the cinema was never closed in 1946-49 except during the 1946 riots and on the date of Mahatma Gandhi's death or that any show was abandoned. Thus, I see a cinema which runs. So soon as that is said, the probability verging on certainty, is that this infirmity the lessor charges the lessee with does not exist. " 19. THE next ingredient of the charge under discussion is that the lessor's generator (not the motor: vide serial No. 20 in the October notice, exhibit H) has been removed. Where miles away from the cinema house the lessor does not answer. The lessee does, as noticed in the preceding paragraph : vide p. 120 of the admitted brief of documents, exhibit A. It is lying with the lessee in a running condition. This is not all. Where miles away from the cinema house the lessor does not answer. The lessee does, as noticed in the preceding paragraph : vide p. 120 of the admitted brief of documents, exhibit A. It is lying with the lessee in a running condition. This is not all. The lessee's evidence which i accept coupled with no evidence from the lessor what Chowbey says cannot be elevated to the height of evidence-completely satisfies me that the lessor's generator is being used too not simultaneously with the lessee's one, but one after the other. If anything, that only prolongs the life of the lessor's generator, giving it much needed periodic rest. Let it, however, be assumed that the lessee does not run the lessor's generator, though he keeps it in running order. By doing so, he does not come on the edge of any covenant, as Mr. Gouri Mitter submits, and rightly in my judgment. The generator being in a running order means that it is "in good and substantial repair and condition and in a state in every respect fit for cinematograph entertainment" within the meaning of sub-clause (4) of clause 2 which is therefore not infringed. No less does it mean that no parts thereof have been "damaged, worn out or destroyed", thus precluding the application of sub-clause (5) ibid. Howsoever I construe the covenants, strictly or even with the utmost liberality, I see no infraction. Mr. Ghosh does. Because, according to him, the lessee has no business to bring another generator. But that is what Mr. Ghosh says and what the lease does not. It is not for me to rise above the lease. 20. THE last ingredient of this charge is that the one the lessee is using in lieu of the lessor's is of an inferior quality. I dismiss this observing that there is no evidence to support it. Indeed, the very use of the word "inferior" suggests that the lessor's generator parted within 1943 was superior to the one now used. But of that there is not even a soupcon of evidence. (The judgment deals with other charges and continues :) Iii. Charge as set out in serial no. 4 ibid. This charge reads : "the machines require thorough overhauling and replacement of parts". Mr. But of that there is not even a soupcon of evidence. (The judgment deals with other charges and continues :) Iii. Charge as set out in serial no. 4 ibid. This charge reads : "the machines require thorough overhauling and replacement of parts". Mr. Gouri Mitter reminds me that the October 29 notice purports to be a one under section 114a of the Transfer of Property Act 4 of 1882 under which the lessor has to serve a notice in writing specifying the particular breach complained of, and wants me to strike it down as "extremely vague. " Is it really ? If I remind myself of section 114a, I remind myself too that it is a modest cinema house I am dealing with-----and not a big factory with machines galore. Putting my thumb across the 91 items in the second schedule to the lease, those which may answer to the description of machines (making the word as elastic as possible) will number some 25. Of these 25 items again, the motor, the generator and the converter have been separately listed. So all the lessee has to attend to is these 22 items, assuming them all to be machines. And then it is not my lease nor yours. It is his. As lessee he runs the cinema; not that he is a stranger knowing little about it. If such a one cannot place the machines his lessor is notifying him about, who will ? So that is the test: not what it would mean to a stranger ignorant of all the facts and circumstances touching the lease to which the notice of October 29 purports to refer, but what it would mean to the lessee conversant with all facts and circumstances, and, further, the notice is to be construed not with a desire to find faults in it which would render it defective but to be construed in a manner that it may flourish rather than perish. What I have just observed is only an adaptation from what lord Atkinson says in (3) Harihar banerji and Ors. v. Ramsashi Roy and ors. : (1918) 45 IA 222, referred to at the Bar. More, as Mr. Ghosh pertinently asks, does the lessee before me say that he cannot place the machines his lessor gives notice of ? He does not. v. Ramsashi Roy and ors. : (1918) 45 IA 222, referred to at the Bar. More, as Mr. Ghosh pertinently asks, does the lessee before me say that he cannot place the machines his lessor gives notice of ? He does not. For one thing, in his reply of January 4 he says : I have overhauled and repaired the machines from time to time and they are in a good running order : vide serial No 4. He does not say : "what machines you are speaking of ? pray, give me particulars" : as he says in serial No. 6 of the January 4 reply. For another, his sworn testimony is just that: it does not matter what the lessor says, we overhauled and repaired the machines and replaced the parts too, whenever necessary (qq. 107-108. I am therefore unable to accept the contention that this charge suffers from vagueness. 21. MR. Gouri Mitter cites two cases none of which can alter this conclusion. (4) Fletcher v. Nokes, (1897)1 Ch. 271, turns on section 14, sub-section 1, of the Conveyancing and Law of Property Act 1881 (44 and 45 Vict. c. 41) by virtue of which a notice is to be served by a lessor on his lessee "specifying the particular breach of covenant complained of"-just the words in our section 114a-before he can enforce a right of re-entry for the breach. But the lease there is a lease of 5 different houses concerning which all that the lessor condescends to say to his lessee is that he has broken the covenants for repairing the inside and outside thereof. And all he requires the lessee to do is to repair the said houses in accordance with the said covenants. Little wonder, such a "liquid" one goes down as an insufficient notice of breach. It does not "enable the tenant to understand with reasonable certainty what it is which he is required to do. ", as north, J. delivering the judgment observes. That can hardly be said of the lessee before me. His lessor does not rest content, as the lessor in (4) Fletcher's case does, referring to the covenants only and to the repairing in accordance therewith. He says specifically : the machines require thorough overhauling and replacement of parts. The lessee is clear as to what he is required to remedy. His lessor does not rest content, as the lessor in (4) Fletcher's case does, referring to the covenants only and to the repairing in accordance therewith. He says specifically : the machines require thorough overhauling and replacement of parts. The lessee is clear as to what he is required to remedy. And he answers clearly too : I have overhauled and repaired the machines which are in a good running order. Again, in (4)Fletcher's case, North, J. lays down: "i do not mean that the landlord need go through every room in a house and point out every defect. " Substitute 'machine' for 'room' and 'cinema house' for 'house' in the above passage. What thus emerges is what I say in answer to Mr. Gouri Hitter's contention: I do not mean that the landlord need go through every machine in a cinema house and point out every defect. The pith of the matter is that the lessee must have an opportunity to remedy the remediable defects. He has that in the case in hand. (5) In re Serle : gregory v. Serle, (1898) 1 Ch. 651, is still more inapplicable here. By a lease Serle covenants with the lessor that he will "sufficiently repair, uphold, sustain, support, pay, scour, cleanse, glaze amend and keep the. . . messuage tenement and premises, and all improvements and additions thereto, and all and every the party-walls, posts, pales, rails, pavements, chains, glass, windows, and other appurtenances in, by and with all needful and necessary operations, etc. when where, and as often as occasion shall require;. . . . " so, here is a covenant so rich in words and ideas. But the lessor shows the utmost economy of both when he notifies the lessee : "you have not kept the said premises well and sufficiently repaired, and the party and other walls thereof. " Kekewich, J. governs himself by (4) Fletcher's case and other cases too and holds this part of the notice as bad, because the tenant does not get full notice of what he is required to do. Indeed, his attention is not directed to the particular things (out of so many) which the landlord complains of. " Kekewich, J. governs himself by (4) Fletcher's case and other cases too and holds this part of the notice as bad, because the tenant does not get full notice of what he is required to do. Indeed, his attention is not directed to the particular things (out of so many) which the landlord complains of. To equate such a vague notice with the one before me by which the lessee is called upon to overhaul machines, so few and so definite out of so many things leased out, is an impossible task. I revert to (5)In re Serle in the next paragraph too, but for another reason. 22. I shall now assume that this particular is vague. Will that by itself alter the fortunes of this litigation by making the whole notice bad, though it abounds in so many facts, set out with so much particularity, telling the lessee precisely and clearly what he is required to remedy ? Mr. Gouri mitter contends, it will. And he relies upon (5) In re Serle in support of this contention. The bad part of the notice in (5) In re Serle has been noticed. The covenant running into a formidable list of things to be done by the lessee, all the lessor complains of is that the lessee has not kept the premises well and sufficiently repaired. This is bad. But the remaining two parts of the notice are good. One is about the lessee having not painted the outside; wood and ironwork in every third year and the other about his not having painted and whitened the internal parts in every seventh year, as Kekewich, J. holds on the authority of (4)Fletcher's case, though he himself is not "quite satisfied", into the cause of which it is not necessary to go. Still he holds that "the notice cannot be saved as a whole because a part of it is good." The reason why he holds so is that the tenant had not had the opportunity of considering the matter whole. His spending money for painting and whitening (in terms of the two good parts of the notice) may come to little, not staying forfeiture, because he has "not complied in some unspecified way with another covenant"-one "which may be much more onerous and involve" him "in much greater expense. " Does this reason avail the lessee before me ? His spending money for painting and whitening (in terms of the two good parts of the notice) may come to little, not staying forfeiture, because he has "not complied in some unspecified way with another covenant"-one "which may be much more onerous and involve" him "in much greater expense. " Does this reason avail the lessee before me ? He is called upon to comply in a specified way with the covenants in sub-clause (4) and (5) of: clause 2 of the lease-which, on materials I have had put before me, cannot be said to be much more onerous and expensive. More, he has understood the charge well enough and answered it well enough too by asserting : with periodic overhauling and repairing done by me, the machines are in fine fettle. Thus, the reason for the decision in (5) In re Serle cannot be translated to the facts before me. Whether or no a notice of breach is sufficient must depend on the facts of each case. If the facts fluctuate-and fluctuate they must, because the facts of two cases are seldom alike-the yardstick of sufficiency or insufficiency will fluctuate too. There can be no formula of universal application. Kekewich, J. does not lay down such a formula either. The reason for his decision on facts before him cannot be the reason of my decision on facts before me "this is not all. Because Mr. Ghosh refers me to a decision of the house of Lords in (6) Fox and Jolly, 1916 AC I where the lessor's notice contains a schedule of dilapidations allowed by the lessee to accrue in and about 6 houses, the subject-matter of the lease. Broadly speaking, the schedule may be divided into three parts. One part lists under general headings repairs required to be done in all the houses, such as-"hack off, and make good all defective plastering." Another part lists specified repairs to be done in particular houses-such as : "provide new stone work round area grating at no. 41 (Menotti Street, Bethnal Green)and new length of stack pipe at No. 43 (of the same street)" or "reinstate scullery doors and frame at No. 35". Still another part lists instances requiring the lessee to "examine and repair", e.g., "examine repair and reinstate all broken or loose titles to main and W. C. roofs." The worse is still to come. 41 (Menotti Street, Bethnal Green)and new length of stack pipe at No. 43 (of the same street)" or "reinstate scullery doors and frame at No. 35". Still another part lists instances requiring the lessee to "examine and repair", e.g., "examine repair and reinstate all broken or loose titles to main and W. C. roofs." The worse is still to come. The schedule concludes with the words: "and note that the completion of the items mentioned in this schedule does, not excuse the execution of other repairs if found necessary" a general clause which it is difficult to beat in indefiniteness. And yet the notice survives. True it is, as Mr. Gouri Mitter submits, that the House of Lords reserve the decision of the exact point decided in (5) In re Serle for the future. But there can be no mistaking the general trend. Lord Buckmaster l. C. in his speech observed that (5)"in re Serle involved a different question," but adds : "so far as it assumed that the landlord would be at liberty to proceed to re-enter for breach of the covenant which had been the subject of the indefinite description, it was not, i think, warranted by the terms of the statute (sec. 14, sub-section 1, of the conveyancing Act 1881. The landlord could not re-enter for such a breach since in respect of the covenant he had mot satisfied in statutory requirements, but it does not necessarily follow that imperfect description of the breach of one covenant would take away from him the right to re-enter for breach of the other covenants which had been sufficiently described. '' lord Atkinson, in whose judgment lord Parker of Waddington concurs, points out in his speech that for the landlord to omit to give sufficient notice is to deny himself a good cause of action entitling him to recover on ejectment by reason of a forfeiture, and proceeds : "but that imposes no impediment whatever to his recovering possession on a forfeiture by reason of some other "breach of covenant, of which he has given clear, precise, adequate, and sufficient notice, satisfying the requirements of the statute. The breaches cannot, in my view, be taken in globo, nor can the several statements contained in the notice be taken in globo. The breaches cannot, in my view, be taken in globo, nor can the several statements contained in the notice be taken in globo. Each breach working a forfeiture must be taken by itself and the statement in the notice dealing with it be taken by itself. If these two combined would have entitled the landlord to enforce the forfeiture if they stood alone, no other breach being complained of or referred to in the notice, then in my view he would still be entitled to enforce the forfeiture and recover possession, though many other breaches should be complained of in reference to which the notice given was defective. " thus, even on the assumption that the breach complained of in serial No. 4 of the notice of October 29 is vague and therefore defective, it does not follow that this imperfect description of the breach of one covenant takes away from the lessor the right to re-enter for other breaches of the same covenant or other covenants which are sufficiently described. Or to put it in the way Lord Atkinson does, one breach of the covenant complained of receiving no effect because of imperfect description, recovery of possession on a forfeiture by reason of other breaches (of which the lessor has given perfect notice) may follow. I am therefore unable to accept Mr. Gouri mitter's contention that the breach complained of in serial no. 4 of the notice being "extremely vague", (as I have assumed but not found), the whole notice deserves to be struck down as bad. A little more about (6) Fox and Jolly. The general clause at the end, prima facie somewhat of an ultimatum for breaches not stated, is interpreted to mean that it does not "open a vista of further repairs" unspecified all, but that thereby the lessor does no more than reserve his rights "in case he should hereafter discover any breach of which he does not at present complain." : vide Lord Sumner's speech. The notice is thus rendered sensible instead of being turned down as insensible. 23. BUT when I say all this, this is all I can say in favour of the lessor. The real trouble for him is that there is no evidence to sustain this charge of the machine needing thorough overhauling and replacement of parts at the relevant time. The notice is thus rendered sensible instead of being turned down as insensible. 23. BUT when I say all this, this is all I can say in favour of the lessor. The real trouble for him is that there is no evidence to sustain this charge of the machine needing thorough overhauling and replacement of parts at the relevant time. The same infirmity again-an infirmity which runs throughout: utter lack of evidence on one side and dependable evidence on the other. Chowbey does not "understand anything of machine-as to its operation." He is "not in a position to say if any part of any machine requires replacement or overhauling" and what the effect is of overhauling. "personally he" does "not understand all those things", but "nirode and the engineer (T. K. Ghosh) told" him "something" (qq. 61-63. Nirode, as noticed, is not examined. T. K. Ghosh is. But he does not say, he told Chowbey anything about machines. Indeed, how can he when he himself does not examine any machines ? The only machine he speaks of is what is called R. C. A. photophone-a sound machine (as he explains. And the reason of his saying so is not because he is an engineer, civil and mechanical, but because he goes "to the pictures now and again". But he confesses more than once that he did not examine it in his 2-day bout of inspection (qq. 182, 186 read with q. No. 4,185, 188,197 etc.. So, Chowbeyji does not appear to be speaking the truth when he says that T. K. Ghosh told him "something" about the machines. Ghosh knowing nothing could not have told him "something". Again, ghosh does not say that he had Hold chowbey "something". It is difficult to conceive of worse evidence in support of a hopeless plea. A hopeless plea, because a cinema which runs with regularity- (of which I am more than satisfied upon the whole of the evidence)-and secures for the lessee a monthly income of Rs. 25,00)) to 30,000 (q. 48 to Chowbey), cannot do so in the heart of the town of Calcutta with machines which limp, which do not go through periodic overhaiuling and which have not their parts: replaced from time to time. It is not a roving cinema for backwoodsmen who will not mind roughing all sorts of defects for a show, a rarity for them. 24. It is not a roving cinema for backwoodsmen who will not mind roughing all sorts of defects for a show, a rarity for them. 24. THIS common-sense view apart, there is the telling evidence of the lessee whom I believe. Naturally the most competent witness to depose to such matters-the cinema as a going concern is his "life-blood" and the cinema closing down means "death" for such a one-he speaks of the plants, machinery and other apparatuses let out to him by the lessor having been in a good running condition. He speaks of periodic replacement of parts too (qq. 26-45, 107-108 etc.. For all I see, there is no cross-examination on this type of evidence in chief in refutation of the charge in serial No. 4 of the October notice, exhibit H. So, the lessee's evidence just summarised may be taken as a sort of admission by the lessor : Sarkar on Evidence 10th edition at page 1170 under the caption: omission to Cross-Examine on certain points. Such omission to challenge the lessee's evidence necessarily leads to the inference, in absence of: anything inherently absurd, that the lessor accepts it. I do not see any absurdity anywhere. The authorities collected by Sarkar are there. Other authorities have since found their way in the reports. One such is (7) A. E. G. Carapiet v. A. Y. Derderian, AIR 1961 Calcutta 359, a decision of the court of appeal where the failure on the part of the caveators to put, to the propounder's witnesses (doctors and nursea), the physical and mental unfitness of the testator to receive even the sacrament, as deposed to by their witness, a Reverend Venkata Ramiah, was held against them (the caveators. Halsbury's Law of England, 3rd edition, Volume 15, lays down as much in article 801 : "where the court is to be asked to disbelieve a witness, the witness should be cross-examined; and failure to cross-examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence-". Thus, the lessor does not put his case on this charge to the lessee in the witness-box at his peril. This is no barren legalism. Thus, the lessor does not put his case on this charge to the lessee in the witness-box at his peril. This is no barren legalism. To quote P. B. Mukharji, J. from his lordship's judgment in (7) Carapiet's case, "it is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. " I therefore find as a fact that this charge (listed in serial No. 4 of the October notice) fails too. 50. VI. Charge as set out in serials 7-12, 16-18 and 26 ibid. I combine these ten matters as the. considerations they merit run into one another. Replacing "seth (Saint ?) Thomas Clock" and five ceiling fans with inferior substitutes, mirrors in the lobby damaged, glasses of the wall almirahs there broken and removed, and certain specified things missing, such as-two table fans, a Christmas tree, ten framed pictures in water-colour of film stars, one iron safe complete with keys and wooden stand, one big alternator for Neon sign and the municipality's (Calcutta Corporation's) sanctioned plan of the cinema with glass frame-all these constitute the subject-matter of this charge as consolidated by me. One common answer to this combined charge is that the rioters at the time of the Great Calcutta Killings in and about August 1946 did all this. Here also the evidence is one-sided : that of the lessee. This is the sort of evidence that tells. And it tells all the more when I weigh this against that of the lessor's solitary witness, on this point Chowbey a sorry specimen from every point of view. He remembers that Great Calcutta Killings of 1946. Who in and about Calcutta then does not he remembers too that the shameful and shameless riots first started on august 16, 1946. And only three days later, to be precise, on August 19, he visited the demised cinema house. He was ill and after he had recovered from his illness, he visited so. If chowbeyji seeks to convey that because of his illness he could not have visited the demised cinema house earlier than August 19, 1946, he indulges in a bravado which produces disbelief in the mind of the court. Even in perfect health he could not have dared out a day earlier and for a destination like that. What the lessee says, on the other hand, rings true. Even in perfect health he could not have dared out a day earlier and for a destination like that. What the lessee says, on the other hand, rings true. 5 or 6 days after the riot had started, they went to the cinema house "along with the police picket" to inspect the ravages thereof (q. 171). But little turns on it. The matter on which a good deal turns is that Chowbey in spite of his visit of the cinema house so soon after the commencement of the riots does not say a word in his evidence-in-chief about all these things remaining intact. And the lessee had informed the lessor all about this in writing on January 4, 1949-some 15 years before Chowbey, thought to be the lessor's key-witness, stepped into the witness-box. More, nobody could be more competent than he to tell me that the answers the lessor returned to the charges (now combined into one) are false. Chowbeyji, because he has not read science, might not tell a generator from a Converter. But he is shrewd enough to have noticed the existence of clocks, fans, pictures, safe, etc. or damaged mirrors and glasses. For that he needed no guidance from Nirode or an engineer. Again, the lessee's evidence is that chowbey who was shown the ravages of the riots made a list of the articles lost (q. 203. That is not however put to Chowbey. At the same time the lessee did notify the lessor by his letter of January 4 that the losses due ho riots were brought to his (lessor's)notice again, again and again. The penultimate paragraph of the lessor's reply of January 4 bears : ''the losses in riots and other damages referred to above were duly brought to your clients' notice for times without number". The italics are mine. I have edited this portion. Because the portion at page 121 of the admitted brief of documents, exhibit A, reads : time within a number, obviously a typographical error. And still Chowbey does not help me and the lessor with a bare denial even. Only in his cross-examination he speaks of having verbally complained to the lessee right from 1946 : "there was no clock" (q. 115. Which part of 1946) Before or after the riots. Which clock-St. And still Chowbey does not help me and the lessor with a bare denial even. Only in his cross-examination he speaks of having verbally complained to the lessee right from 1946 : "there was no clock" (q. 115. Which part of 1946) Before or after the riots. Which clock-St. Thomas clock or the ordinary one the second schedule to the lease lists two clocks, Chowbeyji's evidence does not enable me to answer these questions. But the lessor's letter dated April 1, 1946, does. It is the plaintiff's document no. 4 and the first defendant's document no. 3 at pages 53-55 of the admitted brief of documents, exhibit A. Even on April 1, 1946-months ahead of the Great Calcutta Killings-the lessor alleged that: the lessee had removed St. Thomas clock and replaced it by an inferior one. By his reply dated April 25, 1946, (P. D. no. 5 : 1st D. D. no. 4 at pp. 57-59 ibid) the lessee denied the allegation and maintained that he had not received any clock when he got into the cinema house, that Chowbey, when told so, asked him not to bother about this trifle and that he had put a clock (in no way inferior to the lessor's) on his own for the sake of convenience. I shall return to it. The lessor doss not answer this letter even (qq. 123-129 to the lessee. And suffice it to note now chowbeji's complete silence cm the riots having or not having any adverse effect on the cinema properties. So, on the basis of such evidence : the lessee attributing vandalism to what the lessor complains of and the lessor saying little-it can safely be found as a fact that the rioters did all the mischief constituting the subject matter of the charge as consolidated by me. 25. ONCE the finding as to the cause of all this damage or missing in the consolidated charge be that-and. in my judgment the finding cannot but be so-the liability of the lessee to undo breaches the lessor complains of deserves to be examined in terms of the lease. All the ten matters set out in the beginning of paragraph 50 are in the second schedule to the lease under the caption: tools. in my judgment the finding cannot but be so-the liability of the lessee to undo breaches the lessor complains of deserves to be examined in terms of the lease. All the ten matters set out in the beginning of paragraph 50 are in the second schedule to the lease under the caption: tools. They therefore come within the compendious expressions : "all the fittings, machinery, furniture, articles and things specified in the second schedule hereto", as is the language of sub-clause (4) of clause 2 of the lease, and "the fixture, fittings and machinery specified in the second schedule hereto", or "the said fixtures, fittings, machinery, furniture, articles and things", as is the language of sub-clause (5) of clause 2 ibid. That being so, what has been loosely called as the vis major clause in each of these sub-clauses (4)and (5) now calls attention. Loosely, because it is a little more than a vis major clause, the whole of it reading-damage by fire, act of God and irresistible force only excepted, as noticed in paragraph 6 ante. The word 'and' in this exemption clause has not presumably worried the Bar, because I have not been addressed on it. The word does not worry me either. To carry out the intention of the parties it is necessary to read 'or' for 'and'. The exemption clause exempts the lessee from performing the covenant only in case of damage by fire, act of God or irresistible force. Not that the exemption holds good only in case of damage caused by all the three facts taken together; : fire, act of God and irresistible force. To quote from Maxwell on interpretation of Statutes, 10th edition, page 238, with a little adaptation, a statute in speaking of property to be employed for the maintenance of "sick and maimed soldiers" refers to soldiers who are either the one "or" the other, and not only to those who are both. To hold otherwise will be to bring the law to ridicule. To insist on reading 'and' conjunctively in the case in hand will moan that the damage caused, say, by an earthquake or a tempest will not confer immunity on the lessee from performing the covenant, because though it is an act of God and a force which none can resist, it is not fire. A reductio ad absurdum again. To insist on reading 'and' conjunctively in the case in hand will moan that the damage caused, say, by an earthquake or a tempest will not confer immunity on the lessee from performing the covenant, because though it is an act of God and a force which none can resist, it is not fire. A reductio ad absurdum again. I therefore find from the context that 'or' is intended by the makers of the lease, though 'and' has been used. That is all i say. I do not say 'and' means 'or'. In the English language 'and' does never mean 'or'. 26. UPON evidence I see no fire. Strictly speaking, I see no act of God either-an act which means much more than a mere misfortune and which connotes an irresistible act of nature as cannot be foreseen, and if foreseen, cannot, by any amount of human ingenuity, be resisted. The Great Calcutta killings cannot be elevated to that height. It is an act of man. It is an act of God's children given in to wickedness. I therefore accept Mr. Ghosh's submission that the Great Calcutta killings cannot be treated as an act of god. But the third element of this exemption clause remains : damage by irresistible force is excepted. An act of God is irresistible force too. But the clause under discussion does not stop there. Reciting damage by fire, by an act of God, it goes on and adds : by irresistible force as well. It must therefore be a variety of irresistible force other than the variety an act of god stands for. It is a rule of construction that, unless it is impossible, every word of an instrument must receive effect. So 'irresistible force' must receive effect, apart from an act of god. Not to allow the expression 'irresistible force' to do this duty will be to render it otiose, though it bears a sensible meaning. Nothing that I see can lead me to hold that it is pleonastic. The real intention of the makers of the lease cannot be clearer. The lessee will do this, that, and so many other things. But he shall not do any, if there is only damage by fire, an act of God and irresistible force. Each of the three causes of the damage stands separately, having a particular area all to itself. The real intention of the makers of the lease cannot be clearer. The lessee will do this, that, and so many other things. But he shall not do any, if there is only damage by fire, an act of God and irresistible force. Each of the three causes of the damage stands separately, having a particular area all to itself. It is for decision therefore if the riots on an unprecedented scale of August 1946 which have earned the name of Great Calcutta Killings, a name I have been using throughout, can be called an irresistible force. I agree with Mr. Ghosh if the 1946 lawlessness had been confined to the demised cinema house, the cause of all these things damaged or missing would not have been an irresistible force within the meaning of this exemption provision. I would then say to the lessee, as Mr. Ghosh puts it: 'you should have stopped the hooliganism by appointing a sufficient number of darwans and by calling for the police in good time. But the Great Calcutta Killings were the great Calcutta Killings when the rule of law disappeared abdicating in favour of a reign of terror. Law and order was then broken for anarchy. We reasonable number of darwans could have resisted the attack and prevented the loss that followed, including the less of human life. Normally, none keep darwans on a war footing, so to say. The test therefore is this. An act of man, as distinguished from an act of god, lets loose a force which, from its very nature, is absolutely uncontrollable, almost as an act of God like a cyclone, a flood etc. is. In the dead hour of night a large number of dacoits invade the cinema house, gag the darwans haying them hand and foot, and take away various valuable articles. I shall not call it an irresistible force, though the darwans, outnumbered and overpowered, are incapable of resisting the invaders. This sort of an isolated lawlessness does not pass the test of being absolutely uncontrollable. It is capable of being controlled. That it could not be controlled is another matter. I shall not call it an irresistible force, though the darwans, outnumbered and overpowered, are incapable of resisting the invaders. This sort of an isolated lawlessness does not pass the test of being absolutely uncontrollable. It is capable of being controlled. That it could not be controlled is another matter. Bui when violence stalks; the town on an unprecedented scale, when the hooligans roarn about in convenient pockets lusting for blood, loot and destruction, when there are far, far more law-breakers than policemen to go round, in short, when there is anarchy (and the Great Calcutta Killings so nicely fit such a description), it is an absolutely uncontrollable act of man bearing so close a resemblance to an act of nature which no human ingenuity can resist. I call this an irresistible force. And I see such a force having caused the damage or the missing of the things the lessor complains of. That being so, in terms of the exempting provision in sub-clauses (4) and (5) of clause 2 of the lease, the lessee is not under any liability to make good the damaged articles or to supply the missing ones, as Mr. Gouri Mitter rightly contends. Mr. Ghosh too concedes with his usual fairness this if what has been loosely called the vis major clause applies, there is an end of his argument on this charge which accordingly fails on such a consideration alone. Having regard to the foregoing considerations, I hold that the lessee did not commit breach of any covenant and find the first issue in his favour. 27. IF I am right in determining the first issue in the manner I have done, here is an end of the lessor's suit I am adjudicating. And no other issue need be gone into. I shall, however, assume that I am wrong. Assuming so, i turn to the second issue-one on the suit being barred in limine under section 114a of the Transfer of Property act, 4 of 1882, as inserted by Act 20 of 1929. 28. FOR a proper apprehension of the points raised at the Bar, I reproduce below the section with its marginal heading: relief against 114a. Assuming so, i turn to the second issue-one on the suit being barred in limine under section 114a of the Transfer of Property act, 4 of 1882, as inserted by Act 20 of 1929. 28. FOR a proper apprehension of the points raised at the Bar, I reproduce below the section with its marginal heading: relief against 114a. Where a lease of forfeiture in immovable property curtain other has determined by for cases feature for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing- (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach if it is capable of remedy. Nothing in this section shall apply to an express condition against the assigning, under letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent. The breaches complained of here are capable of remedy. So that way section 114a cannot be put out. But the lessor's notice specifying the particular breaches complained of and requiring the lessee to remedy the breaches, remediable all, is dated October 29, 1948, And his notice to the lessee of his intention to determine the lease is dated December 30, 1948. This manner of timing the two notices the ends under section 114a preceding and not following, the one under section 111 (g)-leads Mr. Gouri Mitter to argue that the whole basis of a notice under section 114a is an existing forfeiture. Elaborating it he contends that only when a lease has determined by forfeiture under section 111 (g), a notice under section 114a may follow. Judged so, Mr. Gouri Mitter concludes in the case in hand the October notice which purports to be under section 114a, preceding (and not following), as it does the December notice under section 111 (g), is bad, incapable of being regarded as a notice under section 114a. Mr. Ghosh sees little substance in such a contention and submits that various other matters to be taken into reckoning militate against what Mr. Mr. Ghosh sees little substance in such a contention and submits that various other matters to be taken into reckoning militate against what Mr. Gouri Mitter contends for. 29. THE first of such matters is that forfeiture is a concept of varying import, its contents varying from section to section. In section 111 (g) by forfeiture is meant breach of an express condition which provides that, an breach thereof, the lessor may re-enter plus the requisite notice, following the breach, by the lessor to the lessee of his intention to determine the lease. In short, breach followed by a notice makes a forfeiture in terms of section 111 (g). Try to apply this definition contends Mr. Ghosh, to section 112 by virtue of which a forfeiture under section 111, clause (g), is waived by acceptance of rent, due since the forfeiture, and the like. And it will not work, because of the first proviso thereto : Provided that the lessor is aware that the forfeiture has been incurred. Going by the definition in section 111 (g), there can be no forfeiture without the lessor being aware that the forfeiture has been incurred. After all, it is he who has given the notice determining the lease in full knowledge of the breach. Necessarily, therefore, forfeiture in terms of section 112 is not the forfeiture section 111 (g) defines. In section 112 forfeiture means breach minus notice. In section 111 (g) it means breach this notice. Having argued so, Mr. Ghosh invites me to hold that in section 114a as well forfeiture means no more : breach minus notice. So, what does it matter, he concludes, that the October notice under section 114a precedes the December notice under section 111 (g) forfeiture as used in section 114a excluding notice under section 111 (g), there is nothing wrong in the October notice under section 114a having preceded the December notice under section 111 (g). This, I believe, is a faithful summary of Mr. Ghosh's argument on forfeiture. 30. NICE though this argument looks at first sight, it cannot stand if the problem be examined from a little below the surface. I am here not to convict, if I can avoid so doing, the legislature of an inconsistency-the like of which between section 111 (g) and 112 Mr. Ghosh points out. I shall suppose instead, if I can, that the legislature is consistent throughout. I am here not to convict, if I can avoid so doing, the legislature of an inconsistency-the like of which between section 111 (g) and 112 Mr. Ghosh points out. I shall suppose instead, if I can, that the legislature is consistent throughout. Having this in the forefront of my consideration, i proceed to examine what a forfeiture is in terms of the statute. The part of section 111 material for the present purpose runs : A lease of immovable property determines- (g) by forfeiture, that is to say, (1)in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee give notice in writing to the lessee of his intention to determine the lease. Thus, the proposition to start with on the basis of this provision is that a lease may be determined by forfeiture-a word the plain meaning of which is a right forfeited, loss of a right. Still the Legislature is anxious to make forfeiture more comprehensible. So it does not stop there, but proceeds instead to drive home its point better. Hence, by the words "that is to soy "immediately following "forfeiture", the Legislature introduces another way of putting what has been already said, namely, forfeiture. And that way reveals each of the three specified events listed in clause (g) to be a case of forfeiture. I shall not sacrifice clarity for brevity. So I go over it again. The lessee incurs forfeiture (1) when he breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) when he denies his lessor's title by setting up a title in a third person or by claiming adversely himself; or (3)when he is adjudicated an insolvent-on the happening of which the lessor may re-enter, the lease providing so. That is all the Legislature has to say about forfeiture. So, forfeiture is that and that only. That is all the Legislature has to say about forfeiture. So, forfeiture is that and that only. May a lease be determined by forfeiture simpliciter, as it may be, say, by efflux of time limited thereby, under clause (a) ? No; the happening of any of the three events specified-and each event by itself makes a forfeiture-does not ipso facto determine the lease, as efflux of time without more does. To determine it, a little more is needed; a notice in writing by the lessor to the lessee of his intention to put an end to the lease, because of the antecedent forfeiture incurred by the lessee. So, a notice as that does not form part of a forfeiture. It is only an essential ingredient of the determination of a lease by forfeiture-an ingredient the lessor must avail himself of to terminate the lease, after the lessee has incurred forfeiture. The determination of a lease is the goal. There are eight modes of reaching it, as clauses (a) to (h) of section 111 go to show. One such mode is forfeiture and notice: clause (g). That is the true significance of 'and' after a semi-colon in the expression "and in any of these cases the lessor. . . . gives notice in writing to the lessee of his intention to determine the lease. " Not that this conjunctive 'and' makes the requisite notice part of forfeiture, one being distinct from the other. To put it in the shape of formula, forfeiture plus notice determine a lease; not forfeiture alone, far less a notice without forfeiture. Let it be said at the risk of repetition, forfeiture is one ingredient and notice another. Forfeiture does not include notice. It is apart from notice The determination of a lease includes both and takes place upon the existence of both. 31. MR. Gouri Mitter reminds me that to read section 111 (g) so will be going against the decision of P. B. Mupharji, J. in (8) Talbot and Co. v. Harichran Halwasiya and Ors. AIR 1952 calcutta 47. I am the last person to lake a view which does not find favour with a judge of His Lordship's eminence. 31. MR. Gouri Mitter reminds me that to read section 111 (g) so will be going against the decision of P. B. Mupharji, J. in (8) Talbot and Co. v. Harichran Halwasiya and Ors. AIR 1952 calcutta 47. I am the last person to lake a view which does not find favour with a judge of His Lordship's eminence. The suit there is grounded on the defendants (lessees) having committed breach of the covenant against sub-letting-a breach which the plaintiff company (lessor) had no knowledge of before February 24, 1947., and which the lessor followed by a notice on February 28, 1947, to the lessee of its intention to determine the lease. The lease therefore stood "determined by "forfeiture on and from, the 28th February, 1947" : page 50 of the report, paragraph (16. In the circumstances, a demand by the lesson on April 29, 1947, of rent up to February 27, 1947, cannot be regarded, it is held, as a demand for rent which accrued due since the forfeiture and does not therefore constitute waiver within the meaning of section 112. Nor can it be said upon evidence, it is held further: that the lessor did any act showing am intention on its part to treat the lease as subsisting in spite of forfeiture. In this context His Lordship observed : "forfeiture of a lease requires the operation of two facts; one is breach by the lessee of express condition which provides for re-entry on such breach and the other is a notice by the lessor expressing his intention to determine the lease. These are the two basic requirements of forfeiture. "-a passage upon which Mr. Gouri Mitter relies. Ira the background of what His Lordship finds earlier : ". . . the lease in favour of the defendants stands determined by forfeiture on and from the 28th February 1947" (paragraph 16 : page 50. I read the passage Mr. Gouri Mitter cites to mean not a mere forfeiture, but determination of a lease by forfeiture, the two basic requirements of which are undoubtedly a breach (forfeiture) and a notice following the breach, that is to say, the forfeiture. Still, I confess. I am not completely out of the difficulty Mr. Gouri mitter confronts me with. When the lessor was aware of the forfeiture on February 24. Still, I confess. I am not completely out of the difficulty Mr. Gouri mitter confronts me with. When the lessor was aware of the forfeiture on February 24. 1947, his demand for rent should have been confined to February 23 preceding. Put this aspect was not mooted, as it appears from the report. So I leave it there. A case is an authority for what is actually decided-not for what seems to follow logically from it : (9) Brindaban Chandra Shaha v. Sureswar Shaha Paramanik, 10 CLJ 283. The position therefore is if forfeiture includes notice, the first proviso to section 112 becomes meaningless, as argued by Mr. Ghosh, and rightly, in my judgment. The lessor himself has given the notice. So he must have been aware of the forfeiture. Under the first proviso, however, a forfeiture is waived only if the lessor is aware that the forfeiture has been incurred by the lessee. It is the lessee who incurs forfeiture. To say so is to say that the lessor is aware of forfeiture and is not aware of forfeiture at the same time. So, let that not be said. Be it said instead that forfeiture simpliciter is any one of the three specified events in section 111 (g). And that has to be said, because "a forfeiture under section 111, clause (g), is waived by", among other things, "acceptance of rent which has become due since the forfeiture'', as section 112 says. If forfeiture means not only the specified breach but also notice determining the lease, no rent can become due ever for a lease determined, for a lease which is no more. The very concept of rent due since the determination of a lease is incomprehensible in fact and at law, no matter what an acrobatic feat one's mind may perform. But the concept of rent due since forfeiture with no determination of the lease yet is so easy to comprehend. It must therefore be said that forfeiture without more is any one of the three events section 111 (g)specifies. So soon as that is said, the legislature does not lay itself open to the charge of speaking in two voices on forfeiture. One voice is the voice in section 111 (g). And another voice is the voice in section 112. I therefore reject Mr. So soon as that is said, the legislature does not lay itself open to the charge of speaking in two voices on forfeiture. One voice is the voice in section 111 (g). And another voice is the voice in section 112. I therefore reject Mr. Ghosh's contention that forfeiture is a concept of varying import, its contents varying from section to section. I reject too Mr. Gouri mitter's contention that forfeiture includes the requisite notice. I hold that forfeiture is any one of the three events specified in section 111 (g) and no more. 32. I assume again that I am wrong and that the contentions I reject are right. Even so, it defeats me, more so Mr. Gouri Mitter, by what process Mr. Ghosh wants it to be held that no element of notice terminating the lease is there in section 114a, the very opening words of which are-Where a lease of immovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter. . . . . A lease may be determined by forfeiture only by the requisite notice following it. No such notice, no determination, even though a breach is there of the worst type. The contents of a forfeiture-whether or no notice is included-may be in the realm of controversy, but not this : the determination of a lease on a breach followed by a notice; or as I say, on a forfeiture followed by a notice. So, let section 111 (g) and 112 cash on the line of Mr. Ghosh's contention. But sections 111 (g) and 114a (which alone concern me) do not. Mr. Ghosh then asks : do you find any reference to section 111 (g) in section 114a ? I do not. So what ? section 114a is preceded by section 111 (g) which detunes forfeiture and prescribes when a lease determines by forfeiture. The species of forfeiture-the first one-in section 111 (g) is the very thing section 114a refers to, almost word for word : section 111 (g). . . . by forfeiture, that is to say- (1) in case lessee breaks an express condition which provides that on breach thereof the lessor may re-enter. . . . Section 114a. . . . The species of forfeiture-the first one-in section 111 (g) is the very thing section 114a refers to, almost word for word : section 111 (g). . . . by forfeiture, that is to say- (1) in case lessee breaks an express condition which provides that on breach thereof the lessor may re-enter. . . . Section 114a. . . . by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter. . . . The presumption is that the same words are used in the same meaning in different parts of an Act. I see no sufficient reason which rebuts this presumption. Let me construe, as Mr. Ghosh wants me to, forfeiture in section 112 in a different sense from that which it bears in section 111 (g). That does not permit me to assume that it has been used in section 114a in the sense in which it has been in section 112. The opening words in section 114a agreeing with the determination of a lease by the first species of forfeiture in section 111 (g) makes such an assumption impossible. See Craies on statute Law, 5th edition, page 159. Then I ask, what good having a definition in an earlier section if that section has to be repeated every time ? It is the Legislature's pleasure that it specifically refers to section 111 (g) in section 112 and. does nothing of the kind in section 114a. That appears to be of no moment. What is of the utmost moment is that the relevant words in sections 111 (g) and 114a agree, making it more than clear that section 114a does refer to the determination of a lease by the first species of forfeiture listed in section 111 (g). It therefore matters little that section 114a does not specifically refer to section 111 (g). And this is the second matter Mr. Ghosh wants to be taken into reckoning : vide paragraph 80 ante. 33. THE third matter Mr. Ghosh, and following him Mr. Gupta, raise may be formulated thus : Why lay so much stress on "where a lease of immovable property has determined etc. "-words Section 114a opens with ? The determination of a lease has to be there in any event. Because without that a suit cannot be thought of even. 33. THE third matter Mr. Ghosh, and following him Mr. Gupta, raise may be formulated thus : Why lay so much stress on "where a lease of immovable property has determined etc. "-words Section 114a opens with ? The determination of a lease has to be there in any event. Because without that a suit cannot be thought of even. So, leave them alone and lay stress instead on the words that follow : "no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing. . . . " Once you do so, you will notice that the accent is on "has served". Hence, it is more than enough if the notice is served (as here) before the suit. Such an argument appears to be deserving of the same answer Mr. Ghosh and Mr. Gupta give to the contention rested on "has determined" in the opening words : "where a lease of immovable property has determined. " If it is true that no suit for ejectment shall lie unless and until the lease has determined, it is equally true that no such suit shall also lie unless and until the requisite notice has been served. So the problem which is for decision-manner of the spacing of the two notices, one under section 111 (g) and another under section 114a-remains as it is. A satisfactory solution of the problem is therefore to be sought elsewhere. 34. I begin with 'where' as section 114a does. The manner of its use shows that it is a, double part of speech here-an adverb and conjunction combined. As an adverb it qualities the verb "has determined. ' As a conjunction, it, joins the two sentences-"a lease of immovable property has determined. . . . " and "no suit for ejectment shall lie". The whole of the context makes it clear that "where" is not used in a sense referring to physical position as in the classical example: Where God builds a church, the Devil builds a chapel. In this illustration, it is a "compound relative: correlation to there" : a spatial adverb, as Otto jesperson says in A Modern English grammar, a multi-volume work. See also O. E. D., the Oxford English dictionary, 1933, by Murray, Badley, craigie and Onions. In this illustration, it is a "compound relative: correlation to there" : a spatial adverb, as Otto jesperson says in A Modern English grammar, a multi-volume work. See also O. E. D., the Oxford English dictionary, 1933, by Murray, Badley, craigie and Onions. In section 114a, however, 'where', apart from its use as an adverb, is used as a conjunction only in its temporal sense a sense pertaining to time. To quote O. E. D. again, a compound relative, 'where' means "in or the case in which (often nearly = when) with the notion of time modified by or merged in that of mere connexion". The other meanings given are-"in the circumstances, position, or condition in which''; again, "it being the case that (chiefly in legal or other documents)" "where a lease has determined" therefore connotes the time when the lease is no more, and prescribes the determination of a lease as a condition upon which what fallows in the section is absolutely dependent. So, on a purely grammatical construction, is seen, a sequence indicating which follows what. The determination of a lease is the first condition. That condition being fulfilled,, the service of the notice is the next thing to be done. And then and then only a suit for ejectment shall lie. Thus, the service of a notice is dependent on the determination of a lease; and the filing of a suit on the service of a notice. In other words, as Mr. Gouri Mitter contends, determine the lease first, serve a notice next, and then raise the suit. I do not rest my interpretation of section 114a on its grammatical construction alone, (10) Marks v. Frogley and Ors. (1898) 1 QB 888, is a case where the court of appeal is called upon to interpret section 158 of the Army Act, 1881 (44 and 45 Vict c 58. It is a section which also opens with 'where' as a double part of speech. And Chitty, L. J. observes at page 904 : but the 158th section of the Army Act, 1881, requires special notice. The section opens with the words, "where an offence under this Act has been committed by any person while subject to military law. " These words constitute a condition precedent to all that follows. And Chitty, L. J. observes at page 904 : but the 158th section of the Army Act, 1881, requires special notice. The section opens with the words, "where an offence under this Act has been committed by any person while subject to military law. " These words constitute a condition precedent to all that follows. The section continues : "such person may be taken into and kept in military custody, and tried, and punished for such offence, although he or the corps of battalion to which he belongs has ceased to be subject to military law in like manner as he might have been taken into and kept in military custody, tried, punished, if he or such corps or battalion had continued so subject. '" the trial judge (Kennedy, J.) takes the words of the condition literally and holds that the offence must have been actually committed. Protanto he is reversed. Chitty, L. J. is unable so to read the condition. So to read it, his lordship observes, not only reduces the section to a palpable absurdity, but renders it meaningless. It is therefore held that the words "alleged to have been committed" must be read into the condition in order to give it any meaning at all. That is not what concerns me. What does concern me is that the words the section opens with : "where an offence under this Act has been committed. . . . " constitute a condition precedent to all that follows. By parity of reasoning, the words section 114a opens with : "where a lease of immovable property has determined. . . . " also constitute a condition precedent to all that follows: the service of a notice and the institution of a suit. So considered, Mr. Gouri Mitter's contention should receive effect-and not Mr. Ghosh's and Mr. Gupta. 's. 35. THIS is not all. Mr. Gouri Mitter has a point when he makes another submission in support of his argument that a notice under section 114a must necessarily follow the determination of a lease by forfeiture of the first variety listed in section 111 (g). The submission is : Have "a clean look" at the whole of section 114a-the first paragraph, the second paragraph which is in the nature of a proviso, and the marginal note too. The submission is : Have "a clean look" at the whole of section 114a-the first paragraph, the second paragraph which is in the nature of a proviso, and the marginal note too. Remember the legislative history of the insertion of this section by the Amending Act 20 of 1929 providing for relief against forfeiture in a case other than one grounded on forfeiture for non-payment of rent already provided for in section 114. So, the conclusion appears to be ineluctable that the whole object of section 114a is to give an opportunity to the lessee to avoid a forfeiture which has already taken place, provided that the breach complained of is capable of remedy. Therefore, the determination of a lease by forfeiture of the particular type must necessarily precede a notice under section 114a. 36. MR. Ghosh has several answers to this submission of Mr. Gouri Mitter. And this is the fourth and last matter Mr. Ghosh wants to be reckoned on this topic. True it is, he submits, that in the body of the section (114a)there is nothing like the words section 114 concludes with : "and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. " still there can be no running away from the clear implication that section 114a does provide for relief against forfeiture for breach of an express condition which provides that on breach thereof the lessor may re-enter, such forfeiture culminating in the determination of a lease. Forfeiture simpliciter does not determine a lease. Forfeiture plus notice do. The second paragraph of section 114a lays down that what goes before in the first paragraph shall not apply, amongst other things, to an express condition relating to forfeiture in case of non-payment of rent, clearly implying thereby that it does apply to forfeiture for breach of an express condition on breach whereof the lessor may re-enter, as is indeed plain from the first para. itself. In other words, all it means is: there is sec. 114 providing for relief against forfeiture for non-payment of rent; and here is sec. 114a providing for relief against forfeiture for breach of an express condition which provides that the lessor may re-enter. It therefore appears to be fairly clear from the body of the section itself that relief against forfeiture in the particular case the isection refers to is intended, though mr. 114a providing for relief against forfeiture for breach of an express condition which provides that the lessor may re-enter. It therefore appears to be fairly clear from the body of the section itself that relief against forfeiture in the particular case the isection refers to is intended, though mr. Ghosh and I too miss the telling words section 114 concludes with. Mr. Gouri Mitter sees a lot of difference between section 114, where relief against forfeiture depends upon the discretion of the judge after the institution of the suit for ejectment, and section 114a, where the lessee relieves himself against forfeiture by remedying the particular breach the lessee complains of, with nothing like a suit anywhere. Who has ever denied that not Mr. Ghosh; nor I. All that is said is that some such words section 114 ends with, in section 114a, would have put the matter beyond any controversy. It is no good however being lachrymose over what the section might have been, Taking section 114a as it is I am not prepared to make much of the words Mr. Ghosh and I miss. The words which are there : "no suit for ejectment shall lie etc. ", appear to be a pointer. A lease has determined by the particular type of forfeiture section 111 (g) prescribes and section 114a refers to. The lessor follows it by a notice calling upon the lessee to remedy the particular breach, a remediable one. The lessee fails to do so within a reasonable time from the date of the service of the notice and is in no mood to vacate the leasehold. Result: a suit by the lessor. And the relief he prays the court for, as he must, is ejectment based on the determination of the lease by forfeiture. But what happens if the lessee does remedy the breach within a reasonable time ? The notice is not given for fun or as a barren formality. The notice is given to afford the lessee an opportunity to behave himself and to keep the lease going, in spite of all that has happened. The implication too clear to be missed is that when the lessee remedies the breach, no suit for ejectment shall lie. Thus, with the breach remedied, the right of a suit for the lessor is gone. It is no longer open to him to raise an action in ejectment. The implication too clear to be missed is that when the lessee remedies the breach, no suit for ejectment shall lie. Thus, with the breach remedied, the right of a suit for the lessor is gone. It is no longer open to him to raise an action in ejectment. Why ? Because the determination of the lease by forfeiture-upon which alone his suit can rest-is no more. The lessee having remedied the remediable breach complained of, what was determined, what was put an end to, namely, the lease, is revived. In sum, the lessee by doing what he has been asked to relieves himself against the forfeiture he incurred. This, to my thinking, appears to be the only rational explanation of the taboo prohibiting the lessor from bringing an action in ejectment even after the determination of the lease by forfeiture unless and until he has served on the lessee the requisite notice specifying the particular remediable breach and requiring him to remedy it; and the lessee has failed to do so within a reasonable time. On any other hypothesis it is impossible to give a sensible meaning to that part of section 114a which prevents the lessor from coming up with a suit for ejectment, though he has determined the lease after, and. because of, forfeiture. It therefore: seems that what section 114 lays down, by a "deeming" provision-"and thereupon the lessee shall hold the property as if the forfeiture had not occurred. "-expressly, section 114a lays down by the clearest implication. The language differs, as the conditions differ. But the object aimed at and achieved is the same relief against forfeiture culminating in the determination of a lease in relief against forfeiture for non-payment of rent, the court orders so, it it thinks fit, because a suit for ejectment depends before it. In relief against forfeiture of the other type, the lessee earns it by remedying the remediable breach and thereby relieving himself against the forfeiture he had incurred. The very contents of the section proper (114a) thus giving firm indications that relief against forfeiture of a particular variety is intended and provided for, I may very well do without its marginal note reading-Relief against forfeiture in certain other cases. But if I press it into service, as I do, the manner I read section 114a providing for relief against forfeiture becomes strengthened so much the more. But if I press it into service, as I do, the manner I read section 114a providing for relief against forfeiture becomes strengthened so much the more. The marginal note, even when it is mo part of the statute, can be looked into for ascertaining what the burden of the section is : For the purpose of interpretation a marginal note was used by martin B., by Cleasby B., and by Collins M. R., the last-named Judge saying: "some help will be derived from the side-note (though of course it is not part of the statute), which shows that the section is dealing with (certain matters)" : Maxwell on the Interpretation of Statutes, tenth edition, page 43. But here in section 114a it is part of the statute itself. I am stating why. Clause 57 of the L. A. (Legislative Assembly) Bill No. 6 of 1929 introduced in the Legislative Assembly on March 6, 1929, reads : After section 114 of the said Act (the Transfer of Property Act, 1882) the following new section shall be inserted, namely : - (And then follows what is now section 114a, word for word, inclusive of the present marginal note, save one difference set out below:-Clause 57 of the Bill. . . . . and the lessee fails, within thirty days from the date of the service of the notice, to remedy the. breach. . . . . Section 114a. . . . . and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach. . . . .)Vide Gazette of India, Part V of march 9, 1929, at pages 30-39. Barring this, the whole of clause 57, inclusive of the side-note, is voted upon by the legislature and enacted into law in the form of section 114a. Whether or no anything in or about the Bill forms part thereof, and the Bill becoming an Act, part of the Act, is to be determined by this test: has the Legislature voted upon it Patanjali Sastri, C. J. applies this test, along with others, and rules out the Statement of Objects and reasons appended to a Bill as an aid to the construction of a statute: (11)Aswini Kumar Ghose and anr. v. Arabinda base and anr. AIR 1952 SC 369 at p. 378. v. Arabinda base and anr. AIR 1952 SC 369 at p. 378. So, the marginal note I see in section 114a is not inserted by an irresponsible person, but by the Legislature. In (12)Iswari Prosad Goenka and ors. v. N. R. Sen and ors., 55 CWN 719, a case Mr. Gourl Mitter cites, Harries, C. J. (with whom Das and Banerjee, JJ. agree)notices at page 732 the former view of the courts of England and India that the marginal note forms no part of the statute, itself, and observes : It is noticeable however that the courts in England have somewhat changed their view because the marginal notes now appear in the draft bills which they did not do in earlier years.-just what obtains here. Crawford in the Construction of Statutes (1940) at pages 359-361 points out that to interpret a statute on the basis of headings inserted by clerks or revisers who cannot exercise legislative power will be to allow such clerks or revisors to encroach upon the prerogative of the legislature-a reasoning which however cannot be applicable where the headings are inserted by the legislators when the bill is drafted or enacted, as is the case before me. With the self-same marginal heading clause 57 is drafted in the bill, voted upon by the Legislature, and elevated to the height of law as section 114a. I, therefore, find that the marginal heading : Relief against forfeiture in certain other cases, does form part of section 114a. 37. AT the same time, all that this finding helps me to do is to understnad the meaning of the section, as Mr. Gupta rightly contends. I do not say that because the marginal heading is so, the section provides for relief against forfeiture for breach of an express condition enabling the lessor to renter in terms of the condition. I say instead that the internal evidence section 114a contains (paragraph 91 ante)points by the clearest implication to relief against such forfeiture-a conclusion which the marginal heading, part of the section, fits with, and proclaims to be right. 38. THE historical setting in which section 114a comes to be inserted in the parent statute helps me no less to understand what the controversy is about. In (11) Aswini Kumar Ghosh's case: supra,, Patanjali Sastri, C. J. makes. 38. THE historical setting in which section 114a comes to be inserted in the parent statute helps me no less to understand what the controversy is about. In (11) Aswini Kumar Ghosh's case: supra,, Patanjali Sastri, C. J. makes. "a brief historical survey of the functions, rights and duties of legal practitioners" so that it "may facilitate appreciation of the contentions of parties," I am proceeding to do no more. Again, as Maxwell puts it at page 20 of the Interpretation of Statutes : As regards the history or external circumstances which led to the enactment, the general rule which is applicable to the construction of all other documents is equally applicable to statutes, viz., that the interpreter should so far put himself in the position of those whose words he is interpreting, as to be able to see to what these words relate. The report of the Special Committee consisting of legal luminaries of the time, Mr. S.R. Das, Mr. B. L. Mitter, Mr. D. F. Mulla and Dr. S, N. Senserves as the "statement of Objects and Reasons" of the bill. Appendix B to the report is "notes on Clauses". And the note on clause 57 proposing new section 114a bears : As the Transfer of property Act, 1882, stands, the only case in which relief against forfeiture is provided for is non-payment of rent in section 114 of the Act. Considerable hardship has been caused in cases where forfeiture accrues on breach of an express condition which provides that on breach thereof the lessor may re-enter, although the breach may be capable of easy remedy. This defect does not exist in the English Law where there was provision made by the conveyancing Act of 1881 for relief against forfeiture in such cases. These provisions of the Conveyancing Act are re-produced in the English Law of property Act, 1925 : section 146. We think it desirable that similar provisions, suitable to Indian conditions, should be introduced in the Transfer of Property act, 1882, and we have accordingly added section 114a. Vide Gazette of India already referred to : pages 40 to 70 at pages 40 and 70. This then is the history of section 114a. And I call this history in aid for a better understanding of the problem before me. Vide Gazette of India already referred to : pages 40 to 70 at pages 40 and 70. This then is the history of section 114a. And I call this history in aid for a better understanding of the problem before me. But when the question of construction of the section comes, I construe the section as printed and published after it is passed by the legislature. For it may very well be that what the committee reports about the Legislature does not approve of though that is by no means the case here. In any event, the report is not part of the statute. And I am not at, liberty to construe the section by what the Committee records. What aid I then receive from the history of section 114a as I glean from the report the aid I receive is that this history tells me the object of the insertion of the new section. Being thus posted with the object, I ask myself : are the terms of the section such that they fairly carry it out ? And I answer : they do. The lessee remedying the remediable breach the lessor complains of after determination of the lease by forfeiture, the lessor is paralysed. He cannot raise an action in ejectment. He cannot enforce the forfeiture his lessee has incurred. The prior determination of the lease by him, following the forfeiture, goes in vain. His lessee wipes it out by remedying the remediable breach which the notice required him to do. This is, in plain language, relief against forfeiture. Mr. Ghosh will see in it, only the lessor's suit for ejectment being barred-which, he contends, falls short of relief against forfeiture. Mr. Gupta following him reiterates the same thing in a slightly different language. In so far as section 114a prevents the lessor from bringing a suit for ejectment when the lessee remedies the remediable breach, the lessee gets a relief. Mr. Gupta concedes that much, but contends : 'this relief is not relief against forfeiture'. Let us not blink facts. Here is a lessor who does all he is required to do under the law to evict his lessee by a suit. Still he cannot sue. Because the very basis of his intended suit-determination of the lease by forfeiture of the particular kind-is gone. Let us not blink facts. Here is a lessor who does all he is required to do under the law to evict his lessee by a suit. Still he cannot sue. Because the very basis of his intended suit-determination of the lease by forfeiture of the particular kind-is gone. The lessee by remedying the remediable breach the lessor complained of has made the basis go. He has relieved himself against the forfeiture he had incurred. So the borderline sought to be drawn between the two reliefs, one imposing a disability - upon the lessor to sue and another relieving forfeiture the lessee has incurred-, is imaginary. In the ultimate analysis, one is indistinguishable from the other. Indeed, it is one : relief against forfeiture the manifest consequence of which is that no suit grounded on forfeiture relieved against can lie. 39. MR. Ghosh contends that because of the wording of section 114a, the lessor will say : 'all I am disabled to do is to bring a suit. I shall not do that. But the determination of the lease I made following the forfeiture stands. I shall not undo it either. Nor shall I accept rent from my lessee so that I may not be caught by waiver for the lessor to say so is to commit suicide. Surely he is not out to make a gift of the leasehold to his lessee. Such a consideration apart-a consideration which shows the lessor having no truck with reality-on a legal plane, the obvious answer to this sort of an obstinancy is that the literal construction of the words : "no suit for ejectment shall lie" will not do in the background of the technicality that prevails here. The lessee having remedied the breach, a stage is reached when the continuance or discontinuance of the determination of the lease does not depend on the pleasure of the lessor. It depends upon the mandate of section 114a. And the mandate is that the lessor shall, if he pleases, sue the lessee who has failed to remedy the remediable breach, though called upon to do so-clearly implying thereby that the lessor shall not sue him for eviction if he has remedied the remediable breach. He shall not, because the forfeiture has been relieved against, because the determination following the forfeiture ceases to exist. He shall not, because the forfeiture has been relieved against, because the determination following the forfeiture ceases to exist. When law undoes the determination so, it is not for the lessor to say : I shall not. 96a. Too much of a literal construction I am on now leads to the inference that a notice under section 114a appears to be essential even when the breach is one, incapable of remedy : ' a conclusion which is so out of harmony with the very object of the enactment. An analysis of the section shows that no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing specifying the particular breach complained of no matter whether the breach is remediable or irremediable. And if the breach is one, capable of remedy, the section provides that by such notice the lessor will require the lessee to remedy it. So and notice even for an irremediable breach must be there. It will however be an idle notice. The breach cannot be remedied. So the forfeiture cannot be relieved against. Does the Legislature then provide for a notice which does no good to the lessee for whose benefit section 114a is inserted ? It is a difficult question to answer. On the one hand, when I find that a too literal adherence to the words of the enactment produces an absurdity (issue of a [purposeless notice for an irremediable breach) I may restrict its meaning to fit with its object (remedy of a remediable breach)-a view which I go by to make the section convey sense in tune with its coming into being. On the other hand, when I find the language so explicit, I may as well say it is for the law-maker, and not the law court, to consider its consequences--a view which does not commend itself to me in the peculiar circumstances obtaining here. At the same time, the point for decision by me is such that this aspect helps neither me nor any one of the parties to any mentionable extent. Still I think it fit to point out this difficulty. And I point out too, if i may, without any impropriety on my part, what appears to me to be the reason of this difficulty. Still I think it fit to point out this difficulty. And I point out too, if i may, without any impropriety on my part, what appears to me to be the reason of this difficulty. The reason is that section 114a has been copied from section 146 of the English Law of Property Act, 1925, the first sub-section of which bears : 146. (1) A right of reentry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee notice- (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (c) in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, wihin a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. Clause (c) of section 146 is not in our section 114a, and for good reasons too. An irremediable breach is not intended to be provided for; nor compensation. All that is sought to be provided for is a remediable breach and the remedy thereof. Under the English statute, the particular breach, remediable or irremediable, has to be specified. Because, in any case, the right of the lessor is there to require the lessee to make compensation in money for the breach of a right which is not there in section 114a and which is not intended either. If this: consideration would have weighed with the draftsman, the relevant words in our section would have perhaps read in some such manner : No suit for ejectment shall lie unless and until, if the particular breach is capable of remedy, the lessor has served on the lessee a notice in writing- (a) specify; ing such breach complained of; and. (b) requiring the lessee to remedy the aforesaid breach; and the lessee fails within a reasonable time from the date of the service of the notice, to remedy the aforesaid breach. Because of remoteness to the point I am deciding, I allow it to rest here and proceed to notice the remaining contentions urged upon me. 40. (b) requiring the lessee to remedy the aforesaid breach; and the lessee fails within a reasonable time from the date of the service of the notice, to remedy the aforesaid breach. Because of remoteness to the point I am deciding, I allow it to rest here and proceed to notice the remaining contentions urged upon me. 40. IT is not difficult to conceive at cases where the right exists, but the remedy to avail oneself of the right does not. Limitation, for example, in absence of express enactment, does not destroy the right, but only bars the remedy, as Sir John Beaumont observes in (13) Atmaram Vinayak Kirtikar v. Lalji Lakhamsi, ILR 1940 Bombay 127 at page 134. Or take any procedural law, such as section 80 of the Procedure Code, 5 of 1908. The right is there. But it bars the remedy unless it is obeyed. Here however the lessee remedying the remediable breach (which is but another name for forfeiture), the forfeiture does not exist, the determination of the lease based upon that does not exist too, and the right of the lessor founded upon such determination is non-existent as well. What section 111 (g) gives to the lessor with one hand, section 114a takes away with the other, so soon as the lessee remedies the remediable breach. Both are substantive rights-one under section 111 (g) being in a positive form and the other under section 114a being in a negative form. Section 111 (g) says to the lessor : "forfeiture occurring, determine the tenancy by notifying your intention to that end and make your tenant ejectable. " Section 114a says : "you shall not bring a suit for ejectment if the tenant remedies the breach. YOU shall not, because the tenant by doing that has made himself non-ejectable. " it is not a case of an adjective or procedural law barring the remedy to enforce a right under a substantive law. It is a case of the substantive law giving a right and then taking it away, on a certain thing happening. It is therefore idle for the lessor to say : 1 have still the right. What I have been deprived of is the remedy to enforce the right. ' The plain answer is : 'you have not the right and necessarily not the remedy of a non-existent right'. It is therefore idle for the lessor to say : 1 have still the right. What I have been deprived of is the remedy to enforce the right. ' The plain answer is : 'you have not the right and necessarily not the remedy of a non-existent right'. The question of the lessor having a right flowing from the determination of the lease has been pressed in another form. It is said that his right being there, he cannot be touched if he re-enters by force. What for is then sec. 6 of the Specific Relief Act, 47 of 1963, (corresponding to section 9 of the 1877 act Mr. Gouri Mitter refers me to) ? such dispossession of the lessee will not be in due course of law within the meaning of that section. And the court will put him back where he was. More. this contention breaks down on the falsity of its premises. Because the lessor is bereft of the right he had acquired by determining the lease. I have stated why. Law will indeed be remarkable if it says to the lessor : 'I do not allow you to evict the lessee by a suit. But you can evict him by force'. And this is what such an approach comes to. 41. I now deal with section 115 which, on a superficial examination, seems to present an anomaly. The court granting relief against forfeiture under section 114, the lessee continues as if the forfeiture had not occurred. The lessee's leases continue just as before, though with the forfeiture their under-leases were all first annulled. That is the second paragraph of section 115. But it does not similarly provide for the under leases when a forfeiture is relieved under section 114a. Mr. Ghosh therefore argues that relief against forfeiture is not the theme of section 114a. I regret my inability to agree. What goes before leads to one, and only one, conclusion. Relief against forfeiture of the first type section 111 (g) defines is section 114a; and section 114a is relief against forfeiture aforesaid. The reasons set out above in support of this conclusion appear to be overwhelming. And for the omission of section 114a in the second paragraph of section 115, the explanation appears to me to be self-evident. Relief against forfeiture of the first type section 111 (g) defines is section 114a; and section 114a is relief against forfeiture aforesaid. The reasons set out above in support of this conclusion appear to be overwhelming. And for the omission of section 114a in the second paragraph of section 115, the explanation appears to me to be self-evident. The under lessees cannot be harmed by mere forfeiture culminating in the determination of the lease of their lessor, even though such determination without more annuls their under-leases. They will have the terrors of forfeiture and determination shaken on them only when the head-lessor gets a decree for ejectment and successfully executes it against his lessee, the lessor of the under-lessees, whom such decree binds too in absence of fraud or collusion (14) (Raghuvanshi Private Ltd. v. Rupchand Gupta and another, 66 CWN 1010. But forfeiture being relieved and the suit being barred, that can never come to pass. Forfeiture which annuls the under-leases stands annulled itself. Such is the effect of relief against forfeiture. So annulment of the under-leases is necessarily annulled as well. It can never be that the head-lessor fails to terminate the lease but succeeds in terminating the under-leases. Why then, make provision for that which is provided for in the very nature of the thing and which can never pose a problem in the practical field ? It may be asked, and very legitimately too: can that not be said of cases section 114 governs ? But the conditions there are different. The court is in seizing of the matter: not a pre-suit event section 114a is concerned with. And, in exercise of its discretion, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against forfeiture. Thereupon, section 114 concludes, the lessee shall hold the property leased as if the forfeiture had not occurred. Section 114a has nothing like it, as noticed. Indeed, confining itself to a pre-suit matter, section 114a can have nothing like it: an order by the court and the consequence of such an order. And this very consequence section 114 sets out makes section 115 lay down another consequence : the consequence of relief against forfeiture on the under lessees that the aforesaid relief 'excepts' their under-leases from being annulled. And this very consequence section 114 sets out makes section 115 lay down another consequence : the consequence of relief against forfeiture on the under lessees that the aforesaid relief 'excepts' their under-leases from being annulled. Section 114a being moulded in a different cast and saying nothing on the consequence of relief against forfeiture on the lessee in the manner section 114 does, it becomes hardly necessary for section 115 to recite the consequences on the underleases. Again, the lessee in spite of the determination of the lease has the right to continue as a lessee till the "reasonable time" to be taken to remedy the remediable breach expires. And so long as it does not expire, he does not surely demote himself to be a trespasser. A conclusion as that is inherent in section 114a which gives him "a reasonable time" to remedy the breach. Therefore, continuing as a statutory lessee even after the determination of the lease, he reverts to the status quo ante as a contractual lessee, the moment he remedies the breach. So the lease remains throughout this period after determination, first as a statutory one, and again as a contractual one. Thus, the underleases do not get annulled at any point of time, the special features of section 114a being what they are. Incidentally, if I am correct in reading the section so, the absence herein, of words which section 114 concludes with (over which Mr. Ghosh and I are a little exercised : paragraph 91 ante)looks so natural and is only to be expected. It therefore seems that the legislature has not deliberately inserted section. 114a after section 114 in section 115. Say, I am wrong. Still, i am not dealing here with the case of an under-lessee whose lessor has relieved himself against forfeiture under section 114a. I am not therefore called upon to consider whether or no he should be governed by the same principle as the underlessee of a lessor who has been granted relief against forfeiture under section 114. 42. THUS, examining the matter as res integra, which indeed it appears to be, the conclusion I have reached is that the very basis of a notice under section 114a is an existing forfeiture. The object of such a notice is to give the lessee a chance to avoid the forfeiture that has already taken place. 42. THUS, examining the matter as res integra, which indeed it appears to be, the conclusion I have reached is that the very basis of a notice under section 114a is an existing forfeiture. The object of such a notice is to give the lessee a chance to avoid the forfeiture that has already taken place. It therefore follows that only when a lease has determined by forfeiture of the first variety listed in section 111 (g), a notice under section 114a has to be given. For all I see, there are no cases the reason for decision of which turns just on the point I have been trying to solve. The two cited at the bar are each a case of breach incapable of remedy. In (15) Pravat chandra Syam v. Bengal Central Bank ltd., AIR 1938 Calcutta 598, Mr. Gouri mitter relies upon, the defendant lessee (Pravat Chandra Syam) failed to pay by January 15, 1936, (which was of the essence of the contract), the first instalment of the purchase money payable under the agreement for sale dated June 28, 1935, the very day the lease was entered into-with the result that the express condition in paragraph 4 of the lease fixing January 15, 1936, as the firm date for payment of the first instalment, was broken, the condition providing that on breach thereof "it shall be lawful for the landlord to re-enter upon the demised premises". The hands of the clock would not go back. And January 15, 1936, could not be available to the lessee again. This demonstrates the breach to have been an irremediable one. In (16)Mrs. Margaret Jean Massy Westmorland Wood v. Colonel Granville Alric richard Spain, AIR 1953 Madras 313, Mr. Ghosh relies upon, the lessor complained to the lessee "of cattle trespass and other breaches of the agreement and warned him that unless he took adequate steps to prevent them and in future abide strictly by the word and spirit of the agreement he would have to face the consequences of any action she (the lessor) might take to enforce her right". Surely breaches as these were not capable of remedy. Surely breaches as these were not capable of remedy. So the question of notice under section 114a did not arise in any of these two cases; all the more so in the Madras case (16) (Wood v. Spain)where the finding of the trial judge upheld by the High Court is that none of the covenants were broken: a finding which was enough for dismissal of the suit. Thus the observations the learned judges thought fit to make on the scope of section 114a rank as obiter dicta, on which we are all agreed Mr. Gouri Mitter, Mr. Ghosh and I. 43. IN (15) Pravat Chandra syam's case ante, R. C. Mitter and biswas, JJ. hold that one written notice is required, reading sections 111 (g) and 114a together-not one under the former and another under the latter; the reason being that section 114a "added to the statute by the amendment of 1929" only defines the form in which the notice has to be given under section 111 (g). Some fourteen years later Rajamannar, C. J. and Venkatarama Aiyar, J. in (16)Wood v. Spain ante "are inclined to agree" with this view, "though there is room for doubt". The judgment is the judgment of the learned Chief justice whose doubt I share, if I may say so with the greatest respect. Do these sections say in any manner that what is provided for is only a form of the notice ? I am afraid not. Both confer substantive rights: one, section 111 (g), in a positive form on the lessor, and another, section 114a, in a negative form on the lessee. A negative form, as section 114a confers a right on the lessee to the extent that it imposes a bar on the lessor. In any event, I do not read this to mean that two notices are bad. I read this to mean that two notices are not essential and that one combined notice satisfying the requirements of sections 111 (g)and 114a is too good. Mr. Ghosh sees an insuperable difficulty in drafting such a combined notice. Mr. Gouri Mitter does not. Nor do I. Here am I, a lessor, telling my lessee-You have broken an express condition X which provides that on breach thereof I may re-enter. I therefore determine the lease and notify you so in writing of my intention. Section 111 (g) receives effect. Mr. Gouri Mitter does not. Nor do I. Here am I, a lessor, telling my lessee-You have broken an express condition X which provides that on breach thereof I may re-enter. I therefore determine the lease and notify you so in writing of my intention. Section 111 (g) receives effect. In the same notice, I tell him further X, the particular breach I complain of, is capable of remedy. And i require you to remedy it. Section 114a receives effect too. So, where is the drafting difficulty ? If I, no draftsman, can draft it, counsel and solicitors-draftsmen all-can do it far better. 44. THIS combined notice the decision of our court rules and the Madras decision approves of, though after expressing a doubt, does not militate against the view I take section 114a: that a notice thereunder must follow the determination of a lease by forfeiture of the first variety. Even if one goes by the mathematical theory of infinitesimals-though a court of law is a singularly inappropriate place for such, refinements the lessee reading the notice I have drafted in the preceding paragraph gets to know first the lessor's intention of determining the lease, and next the demand requiring him (the lessee) to remedy the remediable breach. It comes to saying that a notice under section 114a follows the notice determining the lease under section 111 (g). I leave out of account the lessee, if any, who will start reading the notice from its bottom. There is no difficulty that way. What creates a difficulty is how rajamannar, C. J., reads the two notices, one dated July 7, 1948, (exhibit A. 95), where the lessor complained of cattle trespass etc. as noticed in paragraph 101 ante, and another dated August 27, 1948, (exhibit A. 2), by which the lessee was given notice to vacate and hand over the demised premises by a certain date. The trial judge does :not read 'July 7' notice in conjunction with 'august 27' notice and concludes that the lessee has not been given an opportunity to remedy the breaches, the latter notice not fulfilling the requirements of section 114a. The trial judge does :not read 'July 7' notice in conjunction with 'august 27' notice and concludes that the lessee has not been given an opportunity to remedy the breaches, the latter notice not fulfilling the requirements of section 114a. Because in 'august 27' notice there is a reference to 'July 7' notice, Rajamannaar, c. J. reads the two notices along with one another, observes that since the object of section 114a is to give clear information to the lessee of the breaches so that he might remedy them, a substantial compliance is enough and there, mere technical defects being of little avail, and concludes : "if we had held that the defendant was guilty of breach of any of the covenants, then we would have held that there was proper notice under sections 111 (g) and 114a, Transfer of Property Act"., naturally, Mr. Ghosh, and following him Mr. Gupta, rely on this and contend that the notice dated December 30, 1948, determining the lease which refers to the earlier notice dated October 29, 1948, specifying the particular breaches and requiring the lessee to remedy them, secures a substantial compliance with the requirements of law. If I can govern myself by the hypothetical finding Rajamannar, C. J. arrives at, I am bound to accept this contention. But I cannot. I say so, in all humility. The breaches there "were not capable of remedy because the damages had been done already", as his Lordship himself finds. Surely the cattle would not disgorge what they had devoured and put them where and as they were. So, here is an end of the applicability of section 114a. And what is said about the requirements to make it valid appears to be still more an obiter. None of the covenants having been in breach, the suit would fail as a matter of course and the breach having not been capable of remedy, section 114a could not apply. That is the reason of his Lordship's decision. Exercise all the observations about what constitutes a valid notice under section 114a. Still this ratio decidendi of the judgment of Rajamannar, C. J. would remain entirely untouched. 45. ABOUT technicalities his lordship refers to, they have become the warp and woof of such litigations, whether we like them or not. As A.L. Smith, L.J. observes in (17)Sidebotham v. Holland. (1895) 1 QB 378 at page 388. Still this ratio decidendi of the judgment of Rajamannar, C. J. would remain entirely untouched. 45. ABOUT technicalities his lordship refers to, they have become the warp and woof of such litigations, whether we like them or not. As A.L. Smith, L.J. observes in (17)Sidebotham v. Holland. (1895) 1 QB 378 at page 388. "it cannot be denied that the law upon notices to quit is highly technical; but the technicalities are too deeply rooted in our law to be got rid of. . . . " May not that be said of section 114a which prescribes that a notice thereunder can only be served where a lease has determined by forfeiture etc. ? What these key-words mean I have tried to point out in paragraphs 88, 89 et seq. : a matter which has not been considered in the Madras decision. A technicality it is without doubt. But I would not call it a 'mere' technicality. Could I treat it so, I would have dismissed the topic in a few words. I see ample justification for this technicality. To the history of this legislation again. Law arms the lessor with a formidable weapon in his hands. By a unilateral act charging the lessee with breach of an express condition-on breach of which he may re-enter-he terminates the lease. The lessee who is as much a party to the lease as the lessor is treated as a nobody. The breach may be capable of easy remedy. But that does not matter. He has no right to be heard. He has to go. His lease has been determined, unilaterally though, such law putting on overmuch in favour of the lessor causes considerable hardship to the (lessee. And this cries aloud for relief. Law therefore relents a little, and that too after some forty-eight years: July 1, 1882, when the Transfer of Property act came into force, to April 1, 1930, when the Amendment Act 20 of 1929 received effect. By virtue of this amendment which inserts sec. 114a it is now incumbent upon the lessor to notify his lessee the particular remediable breach he complains of and to require him (the lessee) to remedy it, where (which means 'when': vide paragraph 88 ante) the lease has determined. If he remedies the breach, he renders himself non-ejectable, a relief which has been denied to him all these years. 114a it is now incumbent upon the lessor to notify his lessee the particular remediable breach he complains of and to require him (the lessee) to remedy it, where (which means 'when': vide paragraph 88 ante) the lease has determined. If he remedies the breach, he renders himself non-ejectable, a relief which has been denied to him all these years. The object of the section is no doubt to tell the lessee the particular remediable breach he is to remedy. But when ? After the lease has determined; not before. The statute times this telling, as it must, because it deals with a forfeiture which has occurred, and prescribes a way out by relief against such forfeiture. And what effect has this sort of an ultimatum on the lessee if it be before or after the determination of his lease ? placing myself in the position of a lessee I see considerable difference between a notice telling me of remediable breaches before and after the determination of my lease. If it be after determination, I shall be 'up and about' to save myself and my lease. If it be before determination, I may 'laze' as well; all the more so, as law requires such a notice to be given to me alter the determination of my lease. I must therefore strictly construe section 114a and treat a notice before determination of the lease (which I see here) as no notice thereunder. I am adjudicating a forfeiture which the court 'abhors'. 46. MR. Gouri Mitter sees an inconsistency in the decision under discussion. On the one hand, the view of this Court that section 114a must be deemed as having specified the nature of the notice under section 111 (g) is accepted. Is accepted too the view that two notices, one under section 111 (g) and another under section 114a, are not necessary. On the other hand, the prior notice dated July 7, 1948, is regarded as a notice under section 114a, though the lease is determined by the latter notice dated august 27, 1948. How can that be, mr. Is accepted too the view that two notices, one under section 111 (g) and another under section 114a, are not necessary. On the other hand, the prior notice dated July 7, 1948, is regarded as a notice under section 114a, though the lease is determined by the latter notice dated august 27, 1948. How can that be, mr. Gouri Mitter asks, when by the very law laid down by this court and accepted, in spite of a doubt, by rajamannar, C. J., a notice under section 114a is nothing but elucidation or specification of a notice under section 111 (g)-which means that there can be no notice under section 114a, unless there is an existing forfeiture, an existing determination of the lease following the forfeiture ? If the two notices are treated separately, the contradiction is of course there. But rajamannar, C. J., treats them as one, reading the prior notice in conjunction with the latter one. So it is deemed to be a combined notice. The moment that is borne in mind, the inconsistency, Mr. Gouri Mitter makes a grievance of, disappears as Mr. Gupta so rightly contends. To sum up, my approach is different, if I may say so with great respect and in greater humility. Seized as I am of a litigation grounded on forfeiture, it is for me to be strict in interpreting sections 111 (g) and 114a. And on a strict interpretation, a notice under section 114a must follow the determination of a lease under section 111 (g), be it by two separate notices or by one combined notice. If law is to be obeyed, I see no escape from such a position. And the facts here are telling. The lessor before me has been under no delusion over. To read his notice dated October 29, 1948, specifying so many breaches with particularity and requiring the lessee to remedy them is to see that he "has section 114a in mind very much. It is so unlike the notice dated July 7, 1948, of the Madras case which, going by the report, asks the lessee to take "adequate steps to prevent" the breaches. To prevent the breaches in future is one thing. And to remedy the breaches that have taken place is another. So the notice in the Madras case is still less a notice under sec. 114a. To prevent the breaches in future is one thing. And to remedy the breaches that have taken place is another. So the notice in the Madras case is still less a notice under sec. 114a. And the hypothetical finding there holds me still less too. By the notice dated December 30, 1948-the notice of determination under section 111 (g)-the lessor before me "regrets" the lessee having not remedied any one of the defects listed in the earlier notice and terminates the tenancy. It is also so unlike the notice dated August 27, 1946, of the Madras case which refers to the prior notice of July 7, and asks the lessee to hand "over the demised premises by a firm date. No question is there of the lessee having not remedied the breaches, irremediable all. Therefore, in the case in hand to space the two notices-one of October 29 and another of December 30-in the manner the lessor has done is to depart from the sequence law lays down, possibly lulling the lessee to sleep, and to flout the provisions of sections 111 (g) and 114a no manner of compliance with which in this regard is secured, far less substantial compliance. The fact remains that there is no notice under section 114a after the determination of the lease on December 30, 1948. And one thing stands out boldly when I read (15)Pravat Chandra Syam's case and (16)Wood v. Spain. The point raised before me and the manner in which it has been raised could not have been agitated before their Lordships, the facts there and before me being poles apart. I have therefore treated it as a point of first impression which indeed it is. 47. IN view of all that goes before, the finding on the second issue must necessarily be that the notice dated October 29, 1948, is not a notice under section 114a, that there is no such notice after the determination of the lease on December 30, 1948, and that the suit is therefore barred in limine. This is an additional reason why the suit fails. 48. MR. Gouri Mitter has two other contentions in support of the finding just come to. One is that the October notice tells the lessee to complete the repairs of the cinema house before December 31 following and to rectify the damages- all listed-"forthwith". This is an additional reason why the suit fails. 48. MR. Gouri Mitter has two other contentions in support of the finding just come to. One is that the October notice tells the lessee to complete the repairs of the cinema house before December 31 following and to rectify the damages- all listed-"forthwith". That being so, the notice is said to be bad and, in any event, vague. I shall not deny that the notice is not drafted well enough. But reading it as a whole and fairly, I am in no doubt that what it seeks to convey is this : The cinema house is not in proper repairs in accordance with the covenants (resulting in damage. "a list of the damages" is set out. Rectify them forthwith. And (complete the repairs by December 31. In the context, 'forthwith' does sound cacophonous and appears to be a little out of joint. But the central note is there only to be seen : 'remedy the breaches I complain of by December 31. To think of the "list of damages" apart from repairs, as Mr. Gouri mitter does, is to ignore that the list contains items, such as electric wirings (21), chairs (22), stage and screen (23), ceiling (24) etc., calling for repairs. Reading the notice again fairly and as a whole I do not see in it a demand for repair of the cinema house proper-the building portion only-apart from the particular breaches tabulated, as Mr. Gouri Mitter does. I emphasize the words "according to the covenants" in the light of particular breaches specified, breaches which include the ceiling (surely part of the cinema house) and read the notice to mean a demand for remedying those breaches and no more : a demand asking the lessee to make good the damage "so as to leave the subject so far as possible as though it had not been damaged", to quote Lord Atkin again. 'forthwith' is a stimulating expression to which the draftsman is presumably addicted and which he cannot resist when he drafts the notice. But in the end he makes it clear that his idea of 'forthwith' is December 31, which secures for the lessee sixty-three days to remedy the breaches-thirty-three days more than what clause 2 (12) of the lease gives him, and certainly a reasonable time within the meaning of section 114a. But in the end he makes it clear that his idea of 'forthwith' is December 31, which secures for the lessee sixty-three days to remedy the breaches-thirty-three days more than what clause 2 (12) of the lease gives him, and certainly a reasonable time within the meaning of section 114a. When I interpret this letter, I remind myself that I am not interpreting the statute of limitation. And the validity of a notice, even though it is one of forfeiture; should not turn on the splitting of a straw. Here is an instance of a mere technicality. Nothing hinges therefore on this contention which I reject. The other contention is that the notice of October 20 is not addressed to, and necessarily not served on, all the lessees. If that is so, certainly it will not make a valid notice under section 114a which requires service on the lessee, that is to say on all the lessees. Words in the singular shall include the plural: section 13 of the general Clauses Act, 10 of 1897. Since this forms part of the fifth issue, I treat it thereunder, apart from the second issue which, however, will be affected if I find lack of service on all. 49. THE notice of October 29 is addressed to "nund Kishore Bagaria", mohammed Ibrahim for self and as guardian-ad-litem of all the minor defendants in the previous ejectment suit: no. 456 of 1944 (see paragraph 10 supra), Mohammed Ismail and mussamrnat Zarina Bibi. Are they the only lessees ? Certainly not; the lessor himself says as much in his notice of December 30 which is addressed to seventeen persons inclusive of the four just named whom he addresses in his notice of October 29. He says as much too in his plaint of this very suit : paragraph 6 where are set out the names of sixteen "heirs and legal representatives" of Yacoob including his mother Mrs. He says as much too in his plaint of this very suit : paragraph 6 where are set out the names of sixteen "heirs and legal representatives" of Yacoob including his mother Mrs. Saikh Bahadur who, it is said, died in December, 1948; paragraph 7 where are recited inter alia the determination of the lease in controversy by the original lessor, rameshwarlal Ganerwalla, by a notice in writing dated March 23, 1944, served upon "nand Kishore Bagaria and the heirs of Mohamed Yacoob", the filing of the suit for ejectment-Suit No. 456 of 1944-, contest thereof by some of the defendants; paragraph 12 where the averment is that the defendants of this suit, sixteen strong, (Nand kishore Bagaria is one and the heirs of Yacoob are the rest) have broken the covenants of the lease; paragraphs 13 and 14 which recite the service of the notices of October 29 and December 30 (so familiar by now) "upon the defendants", necessarily all the sixteen; and paragraph 16 which makes a grievance of "the defendants", all the sixteen again, having "continued in wrongful possession" in spite of the service of the notices of October 29 and December 30. Thus, the lessees are so many-not merely four to whom the notice of October 29 is addressed-and that too on the lessor's awn showing and case. So it appears to be clear enough that the notice of October 29 is not even addressed to all the lessees. Not being addressed to all, it is not served upon those who are [left out. It cannot be, howsoever much chowbeyji may say to the contrary (qq. 35, 37, 43 etc. What is worse still, the whole of the evidence completely satisfies me that it is not served even upon the three named lessees who are the heirs of Yacoob. The service on Nand Kishore Bagaria is not in controversy. To review that evidence I now proceed. 50. CHOWBEYJI does not serve this notice. A bearer of the solicitors, charu Chundra Bosu, does, carrying it with him personally. Chowbeyji accompanies him (q. 43. Who that bearer is I do not know. Even sarejendra Nath Majumdar, the lessor's witness, who has seen 21 years service under the said solicitors, cannot say who the particular peon charged with such an errand is "there are so many peons in our office", says he (q. 21. Chowbeyji accompanies him (q. 43. Who that bearer is I do not know. Even sarejendra Nath Majumdar, the lessor's witness, who has seen 21 years service under the said solicitors, cannot say who the particular peon charged with such an errand is "there are so many peons in our office", says he (q. 21. This is hardly an explanation for his non-examination. Upon all I see, I may therefore presume, as i do, that were this bearer examined, he would not have supported the lessor's case on the service of this notice. The worse is still to come. The peon book of the office of the said solicitors, which would have shown who the relevant entries are signed by in token of service, is not forthcoming. Sarojendra does not find the peon book containing the entries on the notice of October 29. "a very old document"-and there is a periodic destruction of documents "in our office" it defies search and remains in hiding. Not that it has been destroyed. Who does the searches yielding no result ? Not he; but the bearers whom he accompanies. I have not had the advantage of seeing and hearing these bearers. And how old will this peon book be ? The other peon book where the notice of December 30 is posted (exhibit I) begins with entries dated November 19, 1948. October 29 to November 19 is twenty-one days. Sarojendra appreciates that. But all he can say is that the peon book of October 29 is not found (qq. 7, 8, 14-17. Such is the evidence explaining the non-production of this important book. I reject it and hold that appearances are in favour of its having been withheld, because it would not show the service of the notice of october 29. 51. NOW calls attention the evidence of Chowbeyji who, I regret to say, has hot impressed me as a witness of truth. He is asked in question No. 43: How did you serve these two letters (one of October 29 and another of December 30) on the defendants ? this is a double question assuming that he had served these two letters, (of which he has said nothing before), just as the question : when did you stop beating your wife-assumes that the person asked so used to beat his wife. this is a double question assuming that he had served these two letters, (of which he has said nothing before), just as the question : when did you stop beating your wife-assumes that the person asked so used to beat his wife. For such a question going on record, I am blameworthy too, not having been sufficiently alert. I ought to have disallowed it. Even so, all he speaks about is Ibrahim and ismail having put their signatures in his presence and having taken the other letters-the number of letters being as many as the addresses, the particular envelope containing the particular name of an heir of Yacoob-and caused them to be signed by their sisters (qq. 148-151. Chowbeyji is speaking of the service of both the notices. The peon book which has been salvaged for me-exhibit I touching the notice of December 30-shows the signature of only one, to wit, ibrahim, though seventeen names appear there, as also in the notice of December 30. So, where are the other signatures Chowbeyji speaks of under oath (including the signature of Ismail who is supposed to have signed in his presence) ? And if there are as many envelopes as addresses, just what chowbeyji says, the October notice could not have been served in any event on more than four named there. Such evidence makes Chowbeyji and what he says in chief look so small. Glibly he says that the October notice was served on all the defendants and acknowledgment obtained (qq. 43 and 44. Nothing, it seems, can be further from the truth. 52. AND the amusing and amazing part of the October notice has not been leviewed yet. One capacity Ibrahim figures there is as guardian ad litem of the minor defendants in suit No. 456 of 1944 which, on June 6, 1945, was decreed on compromise against the lessees who had entered appearance: and dismissed against the rest who had not: these non-appearing defendants having been, as recorded in the decree (exhibit K), "Mrs. Yacoob, Mrs. Md. Yacoob No. 2, daughter no. 1 of Md. Yacoob name not known, Mrs. Md. Yacoob No. 3 and Mrs. Shaikh Bahadur". Such names and descriptions of the nameless ones are there in the December notice too. Yacoob, Mrs. Md. Yacoob No. 2, daughter no. 1 of Md. Yacoob name not known, Mrs. Md. Yacoob No. 3 and Mrs. Shaikh Bahadur". Such names and descriptions of the nameless ones are there in the December notice too. Only the cause title of the plaint filed less than four months after the December notice reveals that the names of the nameless ones have been discovered. Be that as it may, the appointment of a guardian ad litem enures for the whole of the lis including all proceedings in appeal, revision and execution, as is laid down in sub-rule (5) of rule (3) of Order 32 of the Procedure Code-a sub-rule which was inserted by section 2 of the Civil Procedure (Third amendment) Act, 16 of 1937. Therefore, after the lis comes to an end (as here: suit No. 456 of 1944), Ibrahim, the guardian ad litem in that lis and for that lis only, cannot be pressed into service to lay the foundation of another lis by getting a statutory notice served on him for the minors whose guardian ad litem he was in the earlier one only. So, non-service of the notice on all the lessees becomes all the more patent. The reasons which compel me to find non-service of the October notice on all apply mutatis mutandis to the question of the non-service of the December notice. The array of seventeen names (including the five minors whose guardian Ibrahim is stated to be) does not by itself prove service. All it proves is that it is addressed, so unlike the October notice, to all the seventeen, sixteen of whom are the heirs of Yacoob, "all of no. 14 Patwar Bagan Lane, Calcutta'', as the December notice recites, chowbeyji sees the daughters of Yacoob, two or three, when he is at "no. 14'' with the bearer carrying the December notice; but he has no conversations with them (qq. 139-147. So, he has the good fortune of having seen these daughters, Mahomedan women who scarcely appear before a stranger. But this good fortune eludes him when it comes to the daughters lending their signatures in token of acknowledgment of the notice. Ibrahim and is mail take the other letters (so many copies all of the December notice) and cause them to be signed by their sisters not in the presence of Chowbeyji (qq. 149-151. Not a believable evidence. But this good fortune eludes him when it comes to the daughters lending their signatures in token of acknowledgment of the notice. Ibrahim and is mail take the other letters (so many copies all of the December notice) and cause them to be signed by their sisters not in the presence of Chowbeyji (qq. 149-151. Not a believable evidence. That apart, I have doubt in my mind if Chowbeyji finds out all the heirs of Yacoob at "no. 14". The guardian ad litem of (two minor defendants in this suit, Solicitor Hazra, failed to contact later in 1949 the minors or their natural guardian at "no. 14" where he had been himself. The result of his inquiry is hearsay and therefore not evidence. But the fact that he personally goes to "no. 14" and does not find either the natural guardian or the minors is evidence. Even so, I do not bank upon it too much. One may be at "no. 14" late in 1948 and may not be there later in 1949. What oppresses me is the unsatisfactory evidence of chowbeyji and lack of papers of undoubted authenticity showing the service of the notice-features which the lessor may join me in bemoaning, because (so far as, at any rate, the October notice is concerned) by clause 2 (12)of the lease the lessee covenants with the lessor, inter alia, "to permit the lessor. . . . to give or leave upon the said premises notice to the lessee of all defects and want of repairs here found and within thirty days after every such notice as last aforesaid well and sufficiently to repair and make good all such defects and want to repairs thereof notice shall have been so given or left. " 53. I need not refer to such sorry evidence any longer, though there is still more to be referred to. What I have traversed so far is enough to enable me to find as a fact that the December notice, much more the October one, has not been served on all the lessees, unless some special considerations intervene and give the lessor succour he needs so badly. Mr. What I have traversed so far is enough to enable me to find as a fact that the December notice, much more the October one, has not been served on all the lessees, unless some special considerations intervene and give the lessor succour he needs so badly. Mr. Ghosh assures me that there are consideration which stand between the lessor and a finding of the non-service of the two notices on all the lessees, such as the non-appearing defendants in suit No. 456 of 1944 fading out as lessees, the doctrine of. substantial compliance and effective representation, agency, partnership, joint tenancy and the post suit development making the lone contesting defendant Bagaria the sole lessee. I am clear in my mind that none of these reasons can help matters forward for the lessor. I proceed to state why. 54. THE terms of the decree in suit No. 456, exhibit K, be recalled. One such term is that "this suit" (No. 456) against the non-appearing defendants "be and the same is hereby dismissed". So, far from fading out, they remain as strong as ever, if not stronger still. It matters little that the appearing defendants exercise their first option of renewal and that the non-appearing defendants necessarily do not. The lease is one. Indivisible, its integrity remains as it was before the decree. Be it emphasized over again that the suit is dismissed against the non-appearing ones -which means that they remain what they were: lessees. The lease having a further span of life for two years, they have automatically a further span of life too as lessees. So that way the lessor cannot extricate himself out of the difficulty the non-service of the two notices puts him in. Equally ineffective is the doctrine of substantial compliance and effective representation called in aid on behalf of the lessor. Nothing like it can show its head in an action for ejectment like the one I am seized of, where all the lessees have got to be served with the statutory notices determining the lease and lifting the bar of the court's jurisdiction to entertain the suit. Leave even one out of many and the suit comes to shipwreck. Nothing like it can show its head in an action for ejectment like the one I am seized of, where all the lessees have got to be served with the statutory notices determining the lease and lifting the bar of the court's jurisdiction to entertain the suit. Leave even one out of many and the suit comes to shipwreck. If the Transfer of Property Act 4 of 1882 had provided, as section 146 A of the Bengal Tenancy Act 8 of 1885 does, that in certain circumstances the entire body of lessees shall be deemed to be represented by the defendants to the suit, the point would have been deserving of further consideration. Without the doctrine of representation as part of the statute, it deserves to be rejected. 55. TRUE it is that Yacoob, when alive, was the agent of the firm, the western Film Corporation, for the purposes of the business of the said firm. More, as against, he had. the implied authority to bind the firm, other things having been there. So also had Nand Kishore Bagaria, the other partner. Again, notice to bagaria or Yacoob, habitually acting in the business of the firm of any matter on the affairs thereof, would have operated as notice to the firm itself, except in the case of a fraud. This is the combined effect of section 18, 19 and 24 of the Partnership Act 9 of 1932 I have been referred to on behalf of the lessor. But the firm is dissolved by the death of Yacoob. I do not see any agreement to the contrary: section 42 ibid. Nor does the lessor. What the averments in the plaint are like has been noticed in paragraph 111. The firm is to be seen nowhere-neither when the notices are issued nor when the plaint is drawn up and filed: nor even when the earlier action in ejectment (No. 456) is raised. Are seen instead so many individual lessees. That must be so; because with the death of Yacoob the firm is dead too. Therefore, in the circumstances prevailing here, the attempt to foist upon all, the notices served on some, must fail. Such notice "operates as notice to the firm" which, in the case in hand, does not exist. Hence, the less said about such a barren approach, the better. 56. Therefore, in the circumstances prevailing here, the attempt to foist upon all, the notices served on some, must fail. Such notice "operates as notice to the firm" which, in the case in hand, does not exist. Hence, the less said about such a barren approach, the better. 56. NO less barren is the plea of agency apart from the partnership. Who is agent duly authorized and whose ? Nothing short of an agent duly authorized to receive such notices will do. No doubt, Nand Kishore bagaria says that after Yacoob's death he was placed in charge of looking after the affairs of his quondam partner's legal representatives; as also his (the partner's) eldest son (q. 470. There are certain letters too showing that he was taking the responsibility to reply to the lessor on behalf of his co-lessee: responsibility which was thrust upon him by the heirs of yacoob, as he says in answer to question no. 477, for example. Grant all this. Does that make Nand Kishore bagaria a duly authorized agent of his colessees to receive the statutory notices under discussion-one of which is a notice to terminate the tenancy ? what the heirs say to Bagaria comes to this : 'yacoob is dead. Do look after our interests in the business'. Does it also come to saying: 'we authorize you to receive the notice of the termination of the lease and the like'. Say, it does, though that is open to doubt. Even so, if you and I happen to be co-lessees, notice on you and my duly authorized agent will be good notice. But if the lessor addresses you only, notice on my agent can be no notice. I have not been addressed even. So there is no notice on me. What can be done by me can be done by my agent. I cannot receive a notice not addressed to me. My agent cannot do more than I can. That indeed is the case about the October notice addressed to four out of seventeen lessees-Nand Kishore Bagaria and sixteen heirs of Yacoob listed in paragraph 6 of the plaint (including his mother mrs. Shaikh Bahadur who died in december 1948. So, service on bagaria oven if he is the agent of the omitted thirteen, is no service on the lessees so omitted. This is one consideration. Shaikh Bahadur who died in december 1948. So, service on bagaria oven if he is the agent of the omitted thirteen, is no service on the lessees so omitted. This is one consideration. Another is : the predicament in which the lessor finds himself at and during the trial makes him acquire, so it seems to me, this belated wisdom about agency. It is his case that there are as many copies of notic es as there are addresses, each copy being put in a separate envelope. Those meant for the heirs of Yacoob are handed over to Ibrahim and Ismail. Not that- they are made over to Nand kishore Bagaria as the agent of all. And this mode of service I have not been able to bring myself to believe. The presumption is always in favour of a tenancy in common rather than a joint tenancy. I do not see anything here which rebuts this presumption. In (18) Kanji Manji v. Trustees, port of Bombay, AIR 1963 SC 468 , "the exact words of the assignment" stipulate a joint tenancy : ". . . . the assignors do and each of them doth hereby assign and assure with the assignees as Joint Tenants. . . . " (at page 471 : paragraph 7 of the report. Nothing like it can be seen here. And surely neither Bagaria and yacoob, nor Bagaria and Yacoob's heirs (after Yacoob's death) can be regarded like members of a Mitakshara hindu family making a joint tenancy. What goes before conclusively shows that at no point of time even the lessor treats all the lessees as joint tenants. He treats them instead as tenants in common at every stage. (3) Harihar banerji's case reveals a tenancy in common, even though Lord Atkinson observes in one place that "service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants". He treats them instead as tenants in common at every stage. (3) Harihar banerji's case reveals a tenancy in common, even though Lord Atkinson observes in one place that "service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants". And the reason for the decision is full compliance with "the 106th section of the transfer of Property Act, 1882", as found from evidence into the detail of which His Lordship enters, no less upon the presumption that the notice "put into the Post Office" reached its destination at the proper time according to the regular course of business of the Post Office and was received 'by the addressee-a presumption which becomes all the stronger when 'the sender has taken the precaution to register". That reason does not avail the lessor of this suit. Surely the seven Banerjis of Bengal, the principal defendants in (3) Harihar banerji's case, were not Hindus governed by the Mitakshara Law, and to see in them joint tenants is an impossible task. Thus, it is not for the lessor before me to run away from non-service of notices on many under the plea of a joint tenancy of the lessees. 57. NOW remains to be noticed the last contention on behalf of the lessor anxious to pull himself out of the morass in which he is bogged on account of the notices having not been served on all. The contention is : on his own admission Nand Kishore bagaria became the sole proprietor of the firm, Western Film Corporation in 1950 (q. 456. Take cognizance of this post-suit event. And hold that non service of the notices on so many cannot mattter'. Catchy, the contention appears to be destitute of merit. That a court is not precluded from taking into consideration facts which happened after the suit was filed is now well held. The principle on which this rule is based is that "it is the duty of the court which still retains control of the judgment to take such action as will shorten litigation, preserve the rights of both parties, and best sub-serve the ends of justice", to quote Thayer, J. in (19) Ranson v. City of Pierre, (1900)41 CCA 585, cited by Sir Ashutosh mookerjee and Holmwood, JJ. in (20)Ramratan Sahu v. Mohant Sahu, 6 CLJ 74. in (20)Ramratan Sahu v. Mohant Sahu, 6 CLJ 74. A catena of cases re-affirm this principle, such as (21) Rai Charan mandal v. Biswanath Mondal, 20 CLJ 107 : AIR, 1915 Calcutta 103, (22)Sm. Annapurna, Dasi v. Sarat Chandra bhattacharjee, 46 CWN 355, (23)Lachmeswar Prasad Shukul v. Keshwar Lai chaudhuri, AIR 1941 FC 5, (24) Raja kamala Ranjan Roy v. Baijnath bajoria, 53 CWN 329, (25) Surinder Kumar v. Gian Chand, 1958 SCA 412, to quote only a few, and some of which I have reviewed, in (26) Radharani Roy v. State of West Bengal, 67 CWN 215. But to mould a decree after taking notice of subsequent events is to presume the existence of a suit validly instituted. Here, however, the suit is void ab initio. The words of section 114a are plain and imperative. No suit for ejectment shall lie unless and until the lessor has served on the lessee (which means all the lessees) the requisite notice. The lessor does just that which the statute prohibits him to do. So his suit, no matter that he has filed it, shall not 'lie?, a word on which the accent lies. It is therefore not for the court, on the basis of a subsequent happening, to avoid what the statute voids. The court can notice post-suit events only when a suit lies. Where a suit does not lie (as here), there can be no decree and far less the moulding of a decree or a relief. The lack of determination of a lease under section 111 (g) leads to the same result. When, following a forfeiture, the lessor gives notice in writing to the lessee (which again means all the lessees) of his intention to determine the lease, the lease determines. Here the notice has not been served on all the lessees. So the lease is not determined. And the lease not being determined, no suit for ejectment (as the present one) can lie. It is a defect which goes to the root of the us and which the court cannot cure by taking notice of subsequent events. 58. I therefore hold that the notices dated October 29, 1948, and December 30, 1948, have not been served on all the defendants and answer the fifth issue in the negative. It is a defect which goes to the root of the us and which the court cannot cure by taking notice of subsequent events. 58. I therefore hold that the notices dated October 29, 1948, and December 30, 1948, have not been served on all the defendants and answer the fifth issue in the negative. The result of this finding is that there is no valid notice under section 111 (g) or 114a two more reasons why the lessor before me must be non-suited. I now reach the fourth issue the burden of which is whether or no the December notice determines the lease in controversy. It does not. One reason has just been stated under the fifth issue : service of the requisite notice on some, not on all. There is still another reason. By the notice dated October 29, 1948, the lessor gave the lessee clearly to understand that the tenancy would expire on December 31, 1948. He reaffirmed that by two more letters dated December 7 and 21, 1948 : P. D. 19 and P. D. 21 at pages 17 and 111 of the admitted brief of documents, exhibit A. If that is so, it is not clear, to me how he could determine the lease a day too early (December 30) which he did. And there is yet a graver consideration which pertains as much to this issue (the fourth one) ;as to the additional issue on waiver. First, to certain facts not in the realm of controversy. The original rent, it will be recalled, was Rs. 1925 a month (paragraph 3 ante. In terms of clause 3 (5) of the lease, two months' rent (Rs.1,925 plus Rs.l,925 Rs.3,8510)was deposited by the lessee with the lessor "by way of security for the due payment of rent and the performance of the covenants and conditions. " with the assignment, the rent was enhanced to Rs. 2,100 a month. Two months' rent would come to Rs. 4,200. The deposit was thus short of Rs. 350. What was short was deposited by the asstignee. When, however, by the decree in suit No. 456 of 1944 the rent was enhanced still more-to Rs. 2,600 a month (paragraph 10 ante), the question of a further deposit to reach Rs. 5,200, two months' rent, was not considered. Result : the deposit with the lessor had since then a running deficit of Rs. When, however, by the decree in suit No. 456 of 1944 the rent was enhanced still more-to Rs. 2,600 a month (paragraph 10 ante), the question of a further deposit to reach Rs. 5,200, two months' rent, was not considered. Result : the deposit with the lessor had since then a running deficit of Rs. 1,000-Rs. 5,200 minus Rs. 4,200. There has been, in terms of subclause (1) of clause 2, another deposit of Rs. 1,250 which the lessor covenants to return to the lessee on the expiration of the lease, in terms of sub-clause (5) of clause 3. 59. NOW, with these facts in the background, what the lessor did may be examined. The acceptance in advance of two months' rent at the time of the execution of the lease or the deed of assignment years back (January 16 and December 20, 1943) is not acceptance of rent which became due since the forfeiture the date of which I take to be October 29, 1948-when the lessor notified the lessee complaining of so many breaches and asking him to remedy them by December 31, 1948. Nor can it be regarded as "any other act", within the meaning of section 112, by which the lessor showed his intention to treat the lease subsisting after forfeiture. Such acceptance of rent in advance was years ahead of the forfeiture. The contention on behalf of the lessee is that in spite of the breaches complained of the lessor had perforce to wait for two months in order to enable this deposit of two months' rent to be 'eaten up', as indeed is clear from clause 3 (5) of the lease by which the lessor covenants to allow the lessee, before the expiration or sooner determination of the lease, to utilise, towards the rent payable by him for the last two months of the lease, this advance deposit of two months' rent. The deed of assignment provides as much. The lessor holds the deposit "upon the same terms and conditions". And the assignment is subject to the covenants in the lease. Here October rent was paid and accepted. The determination could not be on December 30; because, the contention concludes, two months' rent deposit from after October carried the lease and the parties thereto to december 31. It did not. It could not. The amount in deposit was not two months' rent, but Rs. Here October rent was paid and accepted. The determination could not be on December 30; because, the contention concludes, two months' rent deposit from after October carried the lease and the parties thereto to december 31. It did not. It could not. The amount in deposit was not two months' rent, but Rs. 1,000 less. So December 31 could not be reached, even if it were permissible for me to find out by the rule of three the date in December Rs. 1,600 (left over after appropriation of november rent) would carry the lease to. So, such a formidable contention breaks down on the falsity of its premises (the deposit amounting to two months' rent), not on what is contended for on behalf of the lessor : (1) the deposit being in the nature of a loan, repayment of which cannot be a condition precedent to the determination, or (2)sub-clause (1) of clause 4 of the lease making it "lawful for the lessor at any time to re-enter upon the demised premises" on breach of an express condition. The fallacy of the first point appears to be that the clear words in the lessor's covenant (sub-clause (5) of clause 3) are overlooked-words by which the lessor allows the lessee to utilise, before the expiration or sooner determination of the term of the lease, the deposit towards the rent payable by him for the last two months of the lease, no matter that these last two months-are the two months expiring with the normal expiration of the lease or with its sooner determination. The second point affords the lessor no escape either. If sub-clause (5) of clause 3 is repugnant, to sub-clause (1)of clause 4, the first of these two repugnant clauses shall prevail, there being no special reason to the contrary. But I do not see any repugnancy. The absolute covenant, by which the lessor can re-enter any time on breach of any one of the express conditions sub-clause (1) of clause 4 enumerates, is controlled by the words in sub-clause (5) of clause 3 qualifying and thus postponing the re-entry till the deposit is adjusted against the last two months' rent. A harmonious construction again. The absolute covenant, by which the lessor can re-enter any time on breach of any one of the express conditions sub-clause (1) of clause 4 enumerates, is controlled by the words in sub-clause (5) of clause 3 qualifying and thus postponing the re-entry till the deposit is adjusted against the last two months' rent. A harmonious construction again. So long as the lessor allows the lessee-as he is bound to by his own covenant-to utilise the security deposit towards the rent payable for the last two months of the lease, the lessee remains his lessee. And he the lessor) cannot re-enter against his lessee. He can against a trespasser only. Thus, if the amount in deposit had been Rs. 5,200 instead of Rs. 4,200, the stance the lessee takes would have been so strong. But the deposit falling short by Rs. 1,000, it becomes so vulnerable. 60. IN vain, however, the lessor rids himself of what would have been an insurmountable difficulty for him. On October 29, 1948 he was aware of the forfeiture comprising so many breaches and stated with such particularity. With this clear knowledge of the forfeiture incurred by the lessee-who else would incur a forfeiture ?-he was crediting the deposit of Rs. 4,200 towards the rent of November and December and demanding the balance of Rs. 1,000 for rent which became due since the forfeiture, first by his letter dated December 7, 1948 "please send us a cheque for Rs. 1,000 to cover rents up to 31st instant. " and then by his letter dated December 21, 1948 : "our client (the lessor) will appropriate the money lying in deposit towards rent in terms of the lease. The sum of Rs. 1,250 which is lying with" our client is as security in respect of the machineries. If your clients (the lessee) so desire and confirm in writing, the said sum will also be appropriated towards the balance of rent which will be due to our client (the lessor) up to the end of the term, and the balance, if any, will be refunded to your clients. The lease terminates on the 31st instant. . . . . The lease terminates on the 31st instant. . . . . " upon all this is writ large an act on the part of the lessor, after the forfeiture has been incurred, showing an intention to treat the lease as subsisting up to December 31, 1948 : just the thing the lessee avers in paragraph 10 of hrs written statement, a little in the abstract though. Thus, here is a lessor who, after he "is aware of a cause of forfeiture" by the acts referred to above, "recognizes the lease" up to december 31, 1948. He therefore "waives his right to claim a forfeiture" earlier than December 31 for the particular breaches he complains of. See the Bench decision Mr. Gouri Mitter cites : (27) Muhammad Hassan v. Baidya Nath Sahay, AIR 1940 Patna 140, wherefrom I have quoted as above, save that I read "to claim a forfeiture" in the judgment of Harries, C. J. to mean "to claim the determination of the lease grounded on a forfeiture". Not that once a waiver, always a waiver. I do not say so for a moment. But i do say that once you waive a forfeiture, you cannot determine the lease on the foot of the same forfeiture. That is what I see here. The conclusion therefore follows that the letter or notice of December 30 has not determined the lease and that the breaches complained of have been waived. I find the fourth issue and the additional one so. The third Issue challenging; the competency of the original lessor lachmi Narayan Ganeriwalla to determine the lease needs the short answer that he was entitled to do so. That he failed to do what he was out; to, as found by me, is another matter. 61. THE seventh issue couched in wide terms boils down, as it appears from the arguments addressed to me, to the question of maintainability of that suit in absence of the heirs of Mrs. Shaikh Bahadur, Yacoob's mother, who died sometime in December 1948-as is the averment in the sixth paragraph of the plaint. Such a plea, however, is conspicuous by its absence in the written statement of the lessee. A litigation is not a game in chess. And it is not open to the lessee to spring this sort of a surprise on his lessor at and during the trial. Such a plea, however, is conspicuous by its absence in the written statement of the lessee. A litigation is not a game in chess. And it is not open to the lessee to spring this sort of a surprise on his lessor at and during the trial. Under order 8, Rule 2 of the Procedure Code "the defendant must raise by his pleading all matters which show the suit not to be maintainable." The defendant before me, the lessee, has not done so. This plea is therefore beneath my consideration. Accordingly, I find the seventh issue in favour of the lessor. 62. THE sixth issue on damages does not arise. Had it arisen, I would not have been able to arrive at a firm finding due to paucity of evidence. The ninth issue on mesne profits does not arise either. Here also what I am up against is lack of adequate materials to assess mesne profits, the test to ascertain which is what the lessee (assuming that he has all along been in wrongful possession of the demised premises since December 30, 1948) actually received or might with ordinary diligence have received therefrom. It is not the letting out of a house merely, so that the yardstick of mesne profits will be the rent it bears. It is the letting out of a running cinema house with all it means. The 'diligence' test therefore comes into play. And that necessarily varies the yardstick. But all this tends to be academic. So all I need record is that could i have found all the material issues in favour of the lessor, I would have directed an inquiry under Order 20, rule 12, of the Procedure Code. 63. MR. Gouri Mitter does not press the eighth issue on the exercise of the second option by the lessee for another term of two years with effect from January 1, 1949. So, it must be found in favour of the lessor. 64. THE tenth issue-the general one on what reliefs the plaintiffs are entitled to-can have one, and only one answer, in view of all that goes before : that they are entitled to none. In the result, the suit fails and is dismissed with costs to the sole contesting defendant-the first one-Nand kishore Bagaria. 65. I assess the total costs, to which Mr. In the result, the suit fails and is dismissed with costs to the sole contesting defendant-the first one-Nand kishore Bagaria. 65. I assess the total costs, to which Mr. P. K. Hazra, the guardian ad litem of the two minor defendants of this suit, is entitled at Rs. 510. Because all 1 see completely satisfies me that he has gone in for unnecessary costs by engaging an advocate who appears throughout for the sake of appearance and who does not assist me in any manner whatever, as indeed he cannot in the very nature of things. In so doing, the guardian ad litem has not served the cause of his wards and certainly not the cause of justice. 66. CERTIFIED for two counsel. This case has been a difficult one for me. But my difficulty has been lessened by the able assistance I have received from the Bar, for which I express my indebtedness.